Short Title

Marginal note:Short title

1 This Act may be cited as the Canada Transportation Act.

Her Majesty

Marginal note:Binding on Her Majesty

2 This Act is binding on Her Majesty in right of Canada or a province.

Application

Marginal note:Application generally

3 This Act applies in respect of transportation matters under the legislative authority of Parliament.

Marginal note:Conflicts

• 4 (1) Subject to subsection (2), where there is a conflict between any order or regulation made under this Act in respect of a particular mode of transportation and any rule, order or regulation made under any other Act of Parliament in respect of that particular mode of transportation, the order or regulation made under this Act prevails.

• Marginal note:Competition Act

  (2) Subject to subsection (3), nothing in or done under the authority of this Act, other than Division IV of Part III, affects the operation of the Competition Act.

• Marginal note:International agreements respecting air services

  (3) In the event of any inconsistency or conflict between an international agreement or convention respecting air services to which Canada is a party and the Competition Act, the provisions of the agreement or convention prevail to the extent of the inconsistency or conflict.

National Transportation Policy

Marginal note:Declaration

5 It is declared that a competitive, economic and efficient national transportation system that meets the highest practicable safety and security standards and contributes to a sustainable environment and makes the best use of all modes of transportation at the lowest total cost is essential to serve the needs of its users, advance the well-being of Canadians and enable competitiveness and economic growth in both urban and rural areas throughout Canada. Those objectives are most likely to be achieved when

• (a) competition and market forces, both within and among the various modes of transportation, are the prime agents in providing viable and effective transportation services;

• (b) regulation and strategic public intervention are used to achieve economic, safety, security, environmental or social outcomes that cannot be achieved satisfactorily by competition and market forces and do not unduly favour, or reduce the inherent advantages of, any particular mode of transportation;

• (c) rates and conditions do not constitute an undue obstacle to the movement of traffic within Canada or to the export of goods from Canada;

• (d) the transportation system is accessible without undue obstacle to the mobility of persons, including persons with disabilities; and

• (e) governments and the private sector work together for an integrated transportation system.

Interpretation

Marginal note:Definitions

6 In this Act,

Agency

Office

Agency means the Canadian Transportation Agency continued by subsection 7(1); (Office)

carrier

transporteur

carrier means a person who is engaged in the transport of goods or passengers by any means of transport under the legislative authority of Parliament; (transporteur)

Chairperson

président

Chairperson means the Chairperson of the Agency; (président)

goods

marchandises

goods includes rolling stock and mail; (marchandises)

member

membre

member means a member of the Agency appointed under subsection 7(2) and includes a temporary member; (membre)

Minister

ministre

Minister means the Minister of Transport; (ministre)

rolling stock

matériel roulant

rolling stock includes a locomotive, engine, motor car, tender, snow-plough, flanger and any car or railway equipment that is designed for movement on its wheels on the rails of a railway; (matériel roulant)

shipper

expéditeur

shipper means a person who sends or receives goods by means of a carrier or intends to do so; (expéditeur)

sitting day of Parliament

jour de séance

sitting day of Parliament means a day on which either House of Parliament sits; (jour de séance)

superior court

cour supérieure

superior court means

• (a) in Ontario, the Superior Court of Justice,

• (b) in Quebec, the Superior Court,

• (c) in New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench,

• (d) in Nova Scotia, British Columbia, Prince Edward Island, Yukon and the Northwest Territories, the Supreme Court,

• (e) in Newfoundland and Labrador, the Trial Division of the Supreme Court, and

• (f) in Nunavut, the Nunavut Court of Justice; (cour supérieure)

temporary member

membre temporaire

temporary member means a temporary member of the Agency appointed under subsection 9(1); (membre temporaire)

Vice-Chairperson

vice-président

Vice-Chairperson means the Vice-Chairperson of the Agency. (vice-président)

PART IAdministration

Canadian Transportation Agency

Continuation and Organization

Marginal note:Agency continued

• 7 (1) The agency known as the National Transportation Agency is continued as the Canadian Transportation Agency.

• Marginal note:Composition of Agency

  (2) The Agency shall consist of not more than five members appointed by the Governor in Council, and such temporary members as are appointed under subsection 9(1), each of whom must, on appointment or reappointment and while serving as a member, be a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

• Marginal note:Chairperson and Vice-Chairperson

  (3) The Governor in Council shall designate one of the members appointed under subsection (2) to be the Chairperson of the Agency and one of the other members appointed under that subsection to be the Vice-Chairperson of the Agency.

Marginal note:Term of members

• 8 (1) Each member appointed under subsection 7(2) shall hold office during good behaviour for a term of not more than five years and may be removed for cause by the Governor in Council.

• Marginal note:Reappointment

  (2) A member appointed under subsection 7(2) is eligible to be reappointed on the expiration of a first or subsequent term of office.

• Marginal note:Continuation in office

  (3) If a member appointed under subsection 7(2) ceases to hold office, the Chairperson may authorize the member to continue to hear any matter that was before the member on the expiry of the member’s term of office and that member is deemed to be a member of the Agency, but that person’s status as a member does not preclude the appointment of up to five members under subsection 7(2) or up to three temporary members under subsection 9(1).

Marginal note:Temporary members

• 9 (1) The Minister may appoint temporary members of the Agency from the roster of individuals established by the Governor in Council under subsection (2).

• Marginal note:Roster

  (2) The Governor in Council may appoint any individual to a roster of candidates for the purpose of subsection (1).

• Marginal note:Maximum number

  (3) Not more than three temporary members shall hold office at any one time.

• Marginal note:Term of temporary members

  (4) A temporary member shall hold office during good behaviour for a term of not more than one year and may be removed for cause by the Governor in Council.

• Marginal note:No reappointment

  (5) A person who has served two consecutive terms as a temporary member is not, during the twelve months following the completion of the person’s second term, eligible to be reappointed to the Agency as a temporary member.

Marginal note:Members — conflicts of interest

• 10 (1) A member appointed under subsection 7(2) shall not, directly or indirectly, as owner, shareholder, director, officer, partner or otherwise,

  • (a) be engaged in a transportation undertaking or business; or

  • (b) have an interest in a transportation undertaking or business or an interest in the manufacture or distribution of transportation plant or equipment, unless the distribution is merely incidental to the general merchandising of goods.

• Marginal note:Temporary members may not hold other office

  (2) During the term of office of a temporary member, the member shall not accept or hold any office or employment that is inconsistent with the member’s duties under this Act.

• Marginal note:Disposal of conflict of interest

  (3) If an interest referred to in subsection (1) vests in a member appointed under subsection 7(2) for the benefit of the member by will or succession, the member shall, within three months after the vesting, absolutely dispose of the interest.

Remuneration

Marginal note:Remuneration

• 11 (1) A member shall be paid such remuneration and allowances as may be fixed by the Governor in Council.

• Marginal note:Expenses

  (2) Each member is entitled to be paid reasonable travel and living expenses incurred by the member in carrying out duties under this Act or any other Act of Parliament while absent from the member’s ordinary place of work.

Marginal note:Members — retirement pensions

• 12 (1) A member appointed under subsection 7(2) is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

• Marginal note:Temporary members not included

  (2) A temporary member is deemed not to be employed in the public service for the purposes of the Public Service Superannuation Act unless the Governor in Council, by order, deems the member to be so employed for those purposes.

• Marginal note:Accident compensation

  (3) For the purposes of the Government Employees Compensation Act and any regulation made pursuant to section 9 of the Aeronautics Act, a member is deemed to be an employee in the federal public administration.

Chairperson

Marginal note:Duties of Chairperson

13 The Chairperson is the chief executive officer of the Agency and has the supervision over and direction of the work of the members and its staff, including the apportionment of work among the members and the assignment of members to deal with any matter before the Agency.

Marginal note:Absence of Chairperson

14 In the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Vice-Chairperson has all the powers and shall perform all the duties and functions of the Chairperson.

Marginal note:Absence of both Chairperson and Vice-Chairperson

15 The Chairperson may authorize one or more of the members to act as Chairperson for the time being if both the Chairperson and Vice-Chairperson are absent or unable to act.

Quorum

Marginal note:Quorum

• 16 (1) Subject to the Agency’s rules, two members constitute a quorum.

• Marginal note:Quorum lost because of incapacity of member

  (2) Where a member who is conducting a hearing in respect of a matter becomes incapacitated or dies during the hearing or after the conclusion of the hearing but before rendering a decision and quorum is lost as a result, the Chairperson may, with the consent of all the parties to the hearing,

  • (a) if the incapacity or death occurs during the hearing, authorize another member to continue the hearing and render a decision, or

  • (b) if the incapacity or death occurs after the conclusion of the hearing, authorize another member to examine the evidence presented at the hearing and render a decision,

  and in either case, the quorum in respect of the matter is deemed never to have been lost.

• Marginal note:Quorum not lost because of incapacity of member

  (3) Where a member who is conducting a hearing in respect of a matter becomes incapacitated or dies during the hearing and quorum is not lost as a result, another member may be assigned by the Chairperson to participate in the hearing and in the rendering of a decision.

Rules

Marginal note:Rules

17 The Agency may make rules respecting

• (a) the sittings of the Agency and the carrying on of its work;

• (b) the manner of and procedures for dealing with matters and business before the Agency, including the circumstances in which hearings may be held in private; and

• (c) the number of members that are required to hear any matter or perform any of the functions of the Agency under this Act or any other Act of Parliament.

Head Office

Marginal note:Head office

• 18 (1) The head office of the Agency shall be in the National Capital Region described in the schedule to the National Capital Act.

• Marginal note:Residence of members

  (2) The members appointed under subsection 7(2) shall reside in the National Capital Region described in the schedule to the National Capital Act or within any distance of it that the Governor in Council determines.

Staff

Marginal note:Secretary, officers and employees

19 The Secretary of the Agency and the other officers and employees that are necessary for the proper conduct of the business of the Agency shall be appointed in accordance with the Public Service Employment Act.

Marginal note:Technical experts

20 The Agency may appoint and, subject to any applicable Treasury Board directive, fix the remuneration of experts or persons who have technical or special knowledge to assist the Agency in an advisory capacity in respect of any matter before the Agency.

Records

Marginal note:Duties of Secretary

• 21 (1) The Secretary of the Agency shall

  • (a) maintain a record in which shall be entered a true copy of every rule, order, decision and regulation of the Agency and any other documents that the Agency requires to be entered in it; and

  • (b) keep at the Agency’s office a copy of all rules, orders, decisions and regulations of the Agency and the records of proceedings of the Agency.

• Marginal note:Entries in record

  (2) The entry of a document in the record referred to in paragraph (1)(a) shall constitute the original record of the document.

Marginal note:Copies of documents obtainable

22 On the application of any person, and on payment of a fee fixed by the Agency, the Secretary of the Agency or, in the absence of the Secretary, the person assigned by the Chairperson to act in the absence shall issue under the seal of the Agency to the applicant a certified copy of any rule, order, regulation or any other document that has been issued by the Agency.

Marginal note:Judicial notice of documents

• 23 (1) Judicial notice shall be taken of a document issued by the Agency under its seal without proof of the signature or official character of the person appearing to have signed it.

• Marginal note:Evidence of deposited documents

  (2) A document purporting to be certified by the Secretary of the Agency as being a true copy of a document deposited or filed with or approved by the Agency, or any portion of such a document, is evidence that the document is so deposited, filed or approved and, if stated in the certificate, of the time when the document was deposited, filed or approved.

Powers of Agency

Marginal note:Policy governs Agency

24 The powers, duties and functions of the Agency respecting any matter that comes within its jurisdiction under an Act of Parliament shall be exercised and performed in conformity with any policy direction issued to the Agency under section 43.

Marginal note:Agency powers in general

25 The Agency has, with respect to all matters necessary or proper for the exercise of its jurisdiction, the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders or regulations and the entry on and inspection of property, all the powers, rights and privileges that are vested in a superior court.

Marginal note:Power to award costs

• 25.1 (1) Subject to subsections (2) to (4), the Agency has all the powers that the Federal Court has to award costs in any proceeding before it.

• Marginal note:Costs may be fixed or taxed

  (2) Costs may be fixed in any case at a sum certain or may be taxed.

• Marginal note:Payment

  (3) The Agency may direct by whom and to whom costs are to be paid and by whom they are to be taxed and allowed.

• Marginal note:Scale

  (4) The Agency may make rules specifying a scale under which costs are to be taxed.

Marginal note:Compelling observance of obligations

26 The Agency may require a person to do or refrain from doing any thing that the person is or may be required to do or is prohibited from doing under any Act of Parliament that is administered in whole or in part by the Agency.

Marginal note:Relief

• 27 (1) On an application made to the Agency, the Agency may grant the whole or part of the application, or may make any order or grant any further or other relief that to the Agency seems just and proper.

• (2) and (3) [Repealed, 2008, c. 5, s. 1]

• Marginal note:Amendments

  (4) The Agency may, on terms or otherwise, make or allow any amendments in any proceedings before it.

• (5) [Repealed, 2008, c. 5, s. 1]

Marginal note:Orders

• 28 (1) The Agency may in any order direct that the order or a portion or provision of it shall come into force

  • (a) at a future time,

  • (b) on the happening of any contingency, event or condition specified in the order, or

  • (c) on the performance, to the satisfaction of the Agency or a person named by it, of any terms that the Agency may impose on an interested party,

  and the Agency may direct that the whole or any portion of the order shall have force for a limited time or until the happening of a specified event.

• Marginal note:Interim orders

  (2) The Agency may, instead of making an order final in the first instance, make an interim order and reserve further directions either for an adjourned hearing of the matter or for further application.

Marginal note:Time for making decisions

• 29 (1) The Agency shall make its decision in any proceedings before it as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received, unless the parties agree to an extension or this Act or a regulation made under subsection (2) provides otherwise.

• Marginal note:Period for specified classes

  (2) The Governor in Council may, by regulation, prescribe periods of less than one hundred and twenty days within which the Agency shall make its decision in respect of such classes of proceedings as are specified in the regulation.

Marginal note:Pending proceedings

30 The fact that a suit, prosecution or proceeding involving a question of fact is pending in any court does not deprive the Agency of jurisdiction to hear and determine the same question of fact.

Marginal note:Fact finding is conclusive

31 The finding or determination of the Agency on a question of fact within its jurisdiction is binding and conclusive.

Marginal note:Review of decisions and orders

32 The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

Marginal note:Enforcement of decision or order

• 33 (1) A decision or order of the Agency may be made an order of the Federal Court or of any superior court and is enforceable in the same manner as such an order.

• Marginal note:Procedure

  (2) To make a decision or order an order of a court, either the usual practice and procedure of the court in such matters may be followed or the Secretary of the Agency may file with the registrar of the court a certified copy of the decision or order, signed by the Chairperson and sealed with the Agency’s seal, at which time the decision or order becomes an order of the court.

• Marginal note:Effect of variation or rescission

  (3) Where a decision or order that has been made an order of a court is rescinded or varied by a subsequent decision or order of the Agency, the order of the court is deemed to have been cancelled and the subsequent decision or order may be made an order of the court.

• Marginal note:Option to enforce

  (4) The Agency may, before or after one of its decisions or orders is made an order of a court, enforce the decision or order by its own action.

Marginal note:Fees

• 34 (1) The Agency may, by rule, fix the fees that are to be paid to the Agency in respect of applications made to it, including applications for licences or permits and applications for amendments to or for the renewal of licences or permits, and any other matters brought before or dealt with by the Agency.

• Marginal note:Advance notice to Minister

  (2) The Agency shall give the Minister notice of every rule proposed to be made under subsection (1).

Marginal note:Fees for witnesses

35 Every person summoned to attend before the Agency under this Part or before a person making an inquiry under this Part shall receive the fees and allowances for so doing that the Agency may, by regulation, prescribe.

Marginal note:Approval of regulations required

• 36 (1) Every regulation made by the Agency under this Act must be made with the approval of the Governor in Council.

• Marginal note:Advance notice of regulations

  (2) The Agency shall give the Minister notice of every regulation proposed to be made by the Agency under this Act.

Mediation

Marginal note:Request by parties

• 36.1 (1) If there is a dispute concerning a matter within the Agency’s jurisdiction, all the parties to the dispute may, by agreement, make a request to the Agency for mediation. On receipt of the request, the Agency shall refer the dispute for mediation.

• Marginal note:Appointment of mediator

  (2) When a dispute is referred for mediation, the Chairperson shall appoint one or two persons to mediate the dispute.

• Marginal note:Mediator not to act in other proceedings

  (3) A person who is appointed to mediate a dispute may not act in any other proceedings before the Agency in relation to that matter.

• Marginal note:Confidentiality of mediation

  (4) All matters relating to the mediation of a dispute shall be kept confidential, unless the parties to the dispute otherwise agree, and information provided by a party for the purposes of mediation shall not be used for any other purpose without the consent of that party.

• Marginal note:Time limit for completion of mediation

  (5) Unless the parties to a dispute otherwise agree, the mediation of the dispute shall be completed within 30 days after the dispute is referred for mediation.

• Marginal note:Effect of mediation on proceedings

  (6) The mediation has the effect of

  • (a) staying for the period of the mediation any proceedings before the Agency in so far as they relate to a matter that is the subject of the mediation; and

  • (b) extending the time within which the Agency may make a decision or determination under this Act with regard to those proceedings by the period of the mediation.

• Marginal note:Filing of mediation agreement

  (7) An agreement that is reached as a result of mediation may be filed with the Agency and, after filing, is enforceable as if it were an order of the Agency.

Mediation or Arbitration

Marginal note:Request by all parties

• 36.2 (1) If sections 36.1 and 169.1 do not apply, the Agency may mediate or arbitrate a dispute relating to any railway matter covered under Part III or IV, or to the application of any rate or charge for the movement of goods by railways or for the provision of incidental services, if requested to do so by all parties to the dispute.

• Marginal note:Establishment of roster

  (1.1) The Agency may establish a roster of persons, which may include members and staff of the Agency, to act as mediators or arbitrators.

• Marginal note:Reimbursement of costs

  (2) The parties are jointly and severally, or solidarily, liable to reimburse the Agency its costs arising from the mediation or arbitration.

• Marginal note:Mediator not to act in other proceedings

  (3) The person who acts as mediator or arbitrator may not act in any other proceedings before the Agency in relation to any matter that was at issue in the mediation or arbitration.

Inquiries

Marginal note:Inquiry into complaint

37 The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

Marginal note:Appointment of person to conduct inquiry

• 38 (1) The Agency may appoint a member, or an employee of the Agency, to make any inquiry that the Agency is authorized to conduct and report to the Agency.

• Marginal note:Dealing with report

  (2) On receipt of the report under subsection (1), the Agency may adopt the report as a decision or order of the Agency or otherwise deal with it as it considers advisable.

Marginal note:Powers on inquiry

39 A person conducting an inquiry may, for the purposes of the inquiry,

• (a) enter and inspect any place, other than a dwelling-house, or any structure, work, rolling stock or ship that is the property or under the control of any person the entry or inspection of which appears to the inquirer to be necessary; and

• (b) exercise the same powers as are vested in a superior court to summon witnesses, enforce their attendance and compel them to give evidence and produce any materials, books, papers, plans, specifications, drawings and other documents that the inquirer thinks necessary.

Review and Appeal

Marginal note:Governor in Council may vary or rescind orders, etc.

40 The Governor in Council may, at any time, in the discretion of the Governor in Council, either on petition of a party or an interested person or of the Governor in Council’s own motion, vary or rescind any decision, order, rule or regulation of the Agency, whether the decision or order is made inter partes or otherwise, and whether the rule or regulation is general or limited in its scope and application, and any order that the Governor in Council may make to do so is binding on the Agency and on all parties.

Marginal note:Appeal from Agency

• 41 (1) An appeal lies from the Agency to the Federal Court of Appeal on a question of law or a question of jurisdiction on leave to appeal being obtained from that Court on application made within one month after the date of the decision, order, rule or regulation being appealed from, or within any further time that a judge of that Court under special circumstances allows, and on notice to the parties and the Agency, and on hearing those of them that appear and desire to be heard.

• Marginal note:Time for making appeal

  (2) No appeal, after leave to appeal has been obtained under subsection (1), lies unless it is entered in the Federal Court of Appeal within sixty days after the order granting leave to appeal is made.

• Marginal note:Powers of Court

  (3) An appeal shall be heard as quickly as is practicable and, on the hearing of the appeal, the Court may draw any inferences that are not inconsistent with the facts expressly found by the Agency and that are necessary for determining the question of law or jurisdiction, as the case may be.

• Marginal note:Agency may be heard

  (4) The Agency is entitled to be heard by counsel or otherwise on the argument of an appeal.

Report of Agency

Marginal note:Agency’s report

• 42 (1) Each year the Agency shall, before the end of July, make a report on its activities for the preceding year and submit it, through the Minister, to the Governor in Council describing briefly, in respect of that year,

  • (a) applications to the Agency and the findings on them; and

  • (b) the findings of the Agency in regard to any matter or thing respecting which the Agency has acted on the request of the Minister.

• Marginal note:Assessment of Act

  (2) The Agency shall include in every report referred to in subsection (1) the Agency’s assessment of the operation of this Act and any difficulties observed in the administration of this Act.

• Marginal note:Tabling of report

  (3) The Minister shall have a copy of each report made under this section laid before each House of Parliament on any of the first thirty days on which that House is sitting after the Minister receives it.

Governor in Council

Directions to Agency

Marginal note:Policy directions

• 43 (1) The Governor in Council may, at the request of the Agency or of the Governor in Council’s own motion, issue policy directions to the Agency concerning any matter that comes within the jurisdiction of the Agency and every such direction shall be carried out by the Agency under the Act of Parliament that establishes the powers, duties and functions of the Agency in relation to the subject-matter of the direction.

• Marginal note:Limitation on directions

  (2) A direction issued under subsection (1) shall not affect a matter that is before the Agency on the date of the direction and that relates to a particular person.

Marginal note:Delay of binding effect

44 A direction issued under section 43 is not binding on the Agency until the expiration of the thirtieth sitting day of Parliament after the direction has been laid before both Houses of Parliament by or on behalf of the Minister, unless the direction has been previously laid before both Houses of Parliament in proposed form by or on behalf of the Minister and thirty sitting days of Parliament have expired after the proposed direction was laid.

Marginal note:Referral to committee

45 Where a direction referred to in section 43 is issued or a proposed direction referred to in section 44 is laid before a House of Parliament, it shall be referred without delay by that House to the committee of that House that it considers appropriate to deal with the subject-matter of the direction or proposed direction.

Marginal note:Consultation required

46 Before a direction referred to in section 43 is issued or a proposed direction referred to in section 44 is laid before a House of Parliament, the Minister shall consult with the Agency with respect to the nature and subject-matter of the direction or proposed direction.

Extraordinary Disruptions

Marginal note:Governor in Council may prevent disruptions

• 47 (1) Where the Governor in Council is of the opinion that

  • (a) an extraordinary disruption to the effective continued operation of the national transportation system exists or is imminent, other than a labour disruption,

  • (b) failure to act under this section would be contrary to the interests of users and operators of the national transportation system, and

  • (c) there are no other provisions in this Act or in any other Act of Parliament that are sufficient and appropriate to remedy the situation and counter the actual or anticipated damage caused by the disruption,

  the Governor in Council may, on the recommendation of the Minister and the minister responsible for the Bureau of Competition Policy, by order, take any steps, or direct the Agency to take any steps, that the Governor in Council considers essential to stabilize the national transportation system, including the imposition of capacity and pricing restraints.

• Marginal note:Minister may consult affected persons

  (2) Before recommending that an order be made under this section, the Minister may consult with any person who the Minister considers may be affected by the order.

• Marginal note:Order is temporary

  (3) An order made under this section shall have effect for no more than ninety days after the order is made.

• Marginal note:Order to be tabled in Parliament

  (4) The Minister shall cause any order made under this section to be laid before both Houses of Parliament within seven sitting days after the order is made.

• Marginal note:Reference to Parliamentary Committee

  (5) Every order laid before Parliament under subsection (4) shall be referred for review to the Standing committee designated by Parliament for the purpose.

• Marginal note:Resolution of Parliament revoking order

  (6) Where a resolution directing that an order made under this section be revoked is adopted by both Houses of Parliament before the expiration of thirty sitting days of Parliament after the order is laid before both Houses of Parliament, the order shall cease to have effect on the day that the resolution is adopted or, if the adopted resolution specifies a day on which the order shall cease to have effect, on that specified day.

• Marginal note:Competition Act

  (7) Notwithstanding subsection 4(2), this section and anything done under the authority of this section prevail over the Competition Act.

• Marginal note:Offence

  (8) Every person who contravenes an order made under this section is guilty of an offence and liable on summary conviction

  • (a) in the case of an individual, to a fine not exceeding $5,000, and

  • (b) in the case of a corporation, to a fine not exceeding $100,000,

  for each day the person contravenes the order.

Minister

Support Agreements

Marginal note:Support agreements

48 The Minister may, with the approval of the Governor in Council and on the terms and conditions that the Governor in Council may specify, enter into agreements in support of the national transportation policy set out in section 5 or in respect of any transportation matter that the Minister considers appropriate.

Inquiries

Marginal note:Minister may request inquiry

49 The Minister may direct the Agency to inquire into any matter or thing concerning transportation to which the legislative authority of Parliament extends and report the findings on the inquiry to the Minister as and when the Minister may require.

Transportation Information

Marginal note:Regulations re information

• 50 (1) The Governor in Council may make regulations requiring any persons referred to in subsection (1.1) who are subject to the legislative authority of Parliament to provide information, other than personal information as defined in section 3 of the Privacy Act, to the Minister, when and in the form and manner that the regulations may specify, for the purposes of

  • (a) national transportation policy development;

  • (b) reporting under section 52;

  • (c) operational planning;

  • (d) any safety, security or subsidy program;

  • (e) any infrastructure requirement;

  • (e.1) monitoring the grain transportation and handling system; or

  • (f) the administration of this Act.

• Marginal note:Persons referred to

  (1.1) The persons for the purposes of subsection (1) are

  • (a) carriers;

  • (b) owners or operators of

    • (i) transportation undertakings,

    • (ii) transportation works, infrastructure, facilities or assets, and

    • (iii) grain handling undertakings;

  • (c) providers of services in relation to transportation, including

    • (i) the Canadian Air Transport Security Authority,

    • (ii) NAV CANADA, a corporation incorporated on May 26, 1995 under Part II of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, and

    • (iii) Pilotage Authorities named in the schedule to the Pilotage Act;

  • (d) intermediaries involved in transportation movements who are specified in the regulations; and

  • (e) any other person or class of persons specified in the regulations.

• Marginal note:Information to be provided

  (2) Information required to be provided under subsection (1) may include the following:

  • (a) financial data;

  • (b) traffic and operating statistics; and

  • (c) fitness and ownership information.

• Marginal note:Restriction

  (3) No regulation made under subsection (1) shall require or have the effect of requiring any person to provide the Minister with a contract referred to in subsection 68(1) or a contract entered into under subsection 126(1) or under section 53 of the Canada Marine Act.

• Marginal note:Limitation

  (3.1) Subsection (3) does not apply in respect of a contract entered into under subsection 126(1) to the extent that the information is required for the purpose of monitoring the grain transportation and handling system.

• Marginal note:Report on the monitoring of the grain transportation and handling system

  (3.2) The Minister must prepare, within six months after the end of each crop year, a report on the monitoring of the grain transportation and handling system and cause the report to be tabled in each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister prepares it, if the Minister

  • (a) makes a regulation under paragraph (1)(e.1); and

  • (b) uses or communicates the information provided under the regulation for the purpose of monitoring the grain transportation and handling system.

• Marginal note:Exemptions

  (4) The Minister may exempt a carrier or transportation undertaking from the application of all or any part of a regulation made under subsection (1) if the Minister is satisfied that it is not practicable for the carrier or transportation undertaking to provide the information.

• Marginal note:Consultations

  (5) The Minister may consult with the Agency or Statistics Canada before making any regulation under this section.

Marginal note:Externally produced documents

• 50.01 (1) A regulation made under subsection 50(1) may incorporate by reference any document that is produced by a person or body other than the Minister.

• Marginal note:Type of incorporation by reference

  (2) A document may be incorporated by reference either as it exists on a particular date or as it is amended from time to time.

• Marginal note:Accessibility of incorporated document

  (3) The Minister must ensure that a document that is incorporated by reference is accessible.

• Marginal note:No finding of guilt or administrative sanction

  (4) A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (3) or it was otherwise accessible to that person.

• Marginal note:No registration or publication

  (5) For greater certainty, a document that is incorporated by reference is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

Marginal note:Existing power not limited

50.02 For greater certainty, an express power in this Act to incorporate by reference does not limit the power that otherwise exists to incorporate by reference in a regulation made under this Act.

Marginal note:Information already provided

50.1 For the purposes of subsection 50(1), if any information referred to in that subsection has already been provided to a department or agency of the Government of Canada, the Minister may request that department or agency to provide the information to the Minister.

Marginal note:Confidentiality of information

• 51 (1) Except as otherwise specifically provided in this Act or any other Act of Parliament, information required to be provided to the Minister pursuant to this Act is, when it is received by the Minister, confidential and must not knowingly be disclosed or made available by any person without the authorization of the person who provided the information or documentation, except for the purposes of a prosecution of a contravention of section 173.

• Marginal note:Communication of information

  (2) Subsection (1) does not apply so as to prohibit

  • (a) the communication of information to the Agency or to a minister of the Crown in right of Canada, the agent of any such minister or an officer or employee of, or adviser to, Her Majesty in right of Canada for the purposes of the administration of this Act or any other Act of Parliament or for the purposes of the development of policies;

  • (b) the communication of information to persons referred to in paragraph 50(1.1)(c) that is necessary for them to carry out their duties and functions;

  • (c) the reporting of information in an aggregated form that prevents information obtained from an identifiable person from being related to that person;

  • (d) the communication of information by the Minister for the purpose of monitoring the grain transportation and handling system; or

  • (e) the communication of information that is available to, or ascertainable by, the public.

• Marginal note:Terms and conditions

  (2.1) The Minister may, with the approval of the Governor in Council, make regulations respecting the terms and conditions for the communication of information referred to in subsection (2).

• Marginal note:Safe and secure procedures

  (3) The Minister shall ensure that the procedures and physical measures taken to ensure the confidentiality of information provided to the Minister pursuant to this Act, including the keeping of electronic data, are safe and secure.

• Marginal note:Requirement for other persons to maintain confidentiality

  (4) Any person who receives information from the Minister that is confidential under this Act shall not knowingly disclose that information and shall take the measures necessary to maintain its confidentiality.

Industry Review

Marginal note:Industry overview

• 52 (1) Each year before the end of May, the Minister shall, using the most current information available, prepare and lay before both Houses of Parliament a report providing a brief overview of the state of transportation in Canada.

• Marginal note:Industry review

  (2) Every five years, the report referred to in subsection (1) shall be expanded to a comprehensive review of the state of transportation in Canada which shall include

  • (a) the financial performance of each mode of transportation and its contribution to the Canadian economy;

  • (b) the extent to which carriers and modes of transportation were provided resources, facilities and services at public expense;

  • (c) the extent to which carriers and modes of transportation received compensation, indirectly and directly, for the resources, facilities and services that were required to be provided as an imposed public duty;

  • (c.1) the long term outlook and trends in transportation in Canada; and

  • (d) any other transportation matters that the Minister considers appropriate.

Review of Act

Marginal note:Statutory review

• 53 (1) The Minister shall, no later than eight years after the day this subsection comes into force, appoint one or more persons to carry out a comprehensive review of the operation of this Act and any other Act of Parliament for which the Minister is responsible that pertains to the economic regulation of a mode of transportation or to transportation activities under the legislative authority of Parliament.

• Marginal note:Objective of review

  (2) The person or persons conducting the review shall assess whether the legislation referred to in subsection (1) provides Canadians with a transportation system that is consistent with the national transportation policy set out in section 5 and, if necessary or desirable, may recommend amendments to

  • (a) the national transportation policy; and

  • (b) the legislation referred to in subsection (1).

• Marginal note:Consultations

  (3) The review shall be undertaken in consultation with purchasers and suppliers of transportation services and any other persons whom the Minister considers appropriate.

• Marginal note:Powers on review

  (4) Every person appointed to carry out the review has, for the purposes of the review, the powers of a commissioner under Part I of the Inquiries Act and may engage the services of experts, professionals and other staff deemed necessary for making the review at the rates of remuneration that the Treasury Board approves.

• Marginal note:Report

  (5) The review shall be completed and a report of the review submitted to the Minister within 18 months after the appointment referred to in subsection (1).

• Marginal note:Tabling of report

  (6) The Minister shall have a copy of the report laid before each House of Parliament on any of the first thirty days on which that House is sitting after the Minister receives it.

Review of Mergers and Acquisitions

Marginal note:Notice

• 53.1 (1) Every person who is required to notify the Commissioner of Competition under subsection 114(1) of the Competition Act of a proposed transaction that involves a transportation undertaking shall, at the same time as the Commissioner is notified and, in any event, not later than the date by which the person is required to notify the Commissioner,

  • (a) give notice of the proposed transaction to the Minister; and

  • (b) in the case of a proposed transaction that involves an air transportation undertaking, also give notice of the transaction to the Agency.

• Marginal note:Information

  (2) A notice given to the Minister or to the Agency shall, subject to the regulations, contain the information required under subsection 114(1) of the Competition Act. The notice shall also contain any information with respect to the public interest as it relates to national transportation that is required under any guidelines that shall be issued and published by the Minister. After receipt of a notice, the Minister may require the person who has given the notice to provide further information.

• Marginal note:Guidelines

  (2.1) The guidelines referred to in subsection (2) shall be elaborated in consultation with the Competition Bureau and shall include factors that may be considered to determine whether a proposed transaction raises issues with respect to the public interest as it relates to national transportation.

• Marginal note:Not statutory instruments

  (3) The guidelines referred to in subsection (2) are not statutory instruments within the meaning of the Statutory Instruments Act.

• Marginal note:No public interest issues

  (4) If the Minister is of the opinion that the proposed transaction does not raise issues with respect to the public interest as it relates to national transportation, the Minister shall, within 42 days after a person gives notice under subsection (1), give notice of the opinion to that person, in which case sections 53.2 and 53.3 do not apply in respect of that transaction.

• Marginal note:Public interest issues

  (5) If the Minister is of the opinion that the proposed transaction raises issues with respect to the public interest as it relates to national transportation, the Minister may direct the Agency to examine those issues under section 49 or appoint and direct any person to examine those issues under section 7.1 of the Department of Transport Act.

• Marginal note:Report

  (6) The Agency or person, as the case may be, shall report to the Minister within 150 days after being directed under subsection (5), or within any longer period that the Minister may allow.

Marginal note:Prohibition

• 53.2 (1) No person shall complete a proposed transaction referred to in subsection 53.1(1) unless the transaction is approved by the Governor in Council and, in the case of a transaction that involves an air transportation undertaking, the Agency determines that the transaction would result in an undertaking that is Canadian as defined in subsection 55(1).

• Marginal note:Commissioner’s report

  (2) The Commissioner of Competition shall within 150 days after the Commissioner is notified of the proposed transaction under subsection 114(1) of the Competition Act, or within any longer period that the Minister may allow, report to the Minister and the parties to the transaction on any concerns regarding potential prevention or lessening of competition that may occur as a result of the transaction.

• Marginal note:Report to be made public

  (3) The report shall be made public immediately after its receipt by the Minister.

• Marginal note:Concerns relating to public interest and competition

  (4) After receipt of the Commissioner’s report and any report given under subsection 53.1(6), but before the Minister makes a recommendation for the purposes of subsection (7), the Minister shall

  • (a) consult with the Commissioner regarding any overlap between any concerns that the Minister has in respect of the proposed transaction with regard to the public interest as it relates to national transportation and any concerns in respect of the transaction that are raised in the Commissioner’s report; and

  • (b) request the parties to the transaction to address

    • (i) with the Minister any concerns that the Minister has in respect of the transaction with regard to the public interest as it relates to national transportation, and

    • (ii) with the Commissioner any concerns that the Commissioner has regarding potential prevention or lessening of competition that may occur as a result of the transaction.

• Marginal note:Measures to address concerns

  (5) The parties to the transaction shall

  • (a) after conferring with the Minister regarding concerns referred to in subparagraph (4)(b)(i), inform the Minister of any measures they are prepared to undertake to address those concerns; and

  • (b) after conferring with the Commissioner regarding concerns identified under subparagraph (4)(b)(ii), inform the Commissioner of any measures they are prepared to undertake to address those concerns.

  The parties may propose revisions to the transaction.

• Marginal note:Preconditions to recommendation

  (6) Before making a recommendation for the purposes of subsection (7), the Minister shall obtain the Commissioner’s assessment of the adequacy of any undertaking proposed by the parties to address the concerns that have been identified under subparagraph (4)(b)(ii) and the effects of any proposed revisions to the transaction on those concerns.

• Marginal note:Approval of Governor in Council

  (7) If the Governor in Council is satisfied that it is in the public interest to approve the proposed transaction, taking into account any revisions to it proposed by the parties and any measures they are prepared to undertake, the Governor in Council may, on the recommendation of the Minister, approve the transaction and specify any terms and conditions that the Governor in Council considers appropriate. The Governor in Council shall indicate those terms and conditions that relate to potential prevention or lessening of competition and those that relate to the public interest as it relates to national transportation.

• Marginal note:Variation of terms and conditions

  (8) On application by a person who is subject to terms and conditions specified under subsection (7), the Governor in Council may, on the recommendation of the Minister, vary or rescind the terms and conditions. If the terms and conditions to be varied or rescinded affect competition, the Minister shall consult with the Commissioner before making the recommendation.

• Marginal note:Commissioner’s representations

  (9) If the Minister directs the Agency under section 49 to inquire into any matter or thing to assist the Minister in making a recommendation under subsection (7) or (8), the Agency shall give notice of the inquiry to the Commissioner and allow the Commissioner to make representations to the Agency.

• Marginal note:Compliance with terms and conditions

  (10) Every person who is subject to terms and conditions shall comply with them.

Marginal note:Canadian

53.3 The Agency shall determine whether a proposed transaction referred to in subsection 53.1(1) that involves an air transportation undertaking would result in an undertaking that is Canadian as defined in subsection 55(1).

Marginal note:Order of divestiture — application by Minister

• 53.4 (1) If a person contravenes subsection 53.2(1) or (10) with respect to a term or condition that relates to the public interest as it relates to national transportation, a superior court may, on application by the Minister, order the person to cease the contravention or do any thing that is required to be done, and may make any other order that it considers appropriate, including an order requiring the divestiture of assets. The Minister shall notify the Commissioner of Competition before making an application.

• Marginal note:Order of divestiture — application by Commissioner

  (2) If a person contravenes subsection 53.2(10) with respect to a term or condition that relates to potential prevention or lessening of competition, a superior court may, on application by the Commissioner, order the person to cease the contravention or do any thing that is required to be done, and may make any other order that it considers appropriate, including an order requiring the divestiture of assets. The Commissioner shall notify the Minister before making an application.

Marginal note:Regulations

53.5 The Governor in Council may, on the recommendation of the Minister, make regulations

• (a) specifying information required in a notice under subsection 53.1(1); and

• (b) exempting classes of transactions from the application of sections 53.1 to 53.3.

Marginal note:Offence — subsection 53.1(1)

• 53.6 (1) Every person who contravenes subsection 53.1(1) is guilty of an offence and is liable

  • (a) on conviction on indictment, to a fine not exceeding $50,000; or

  • (b) on summary conviction, to a fine not exceeding $25,000.

• Marginal note:Offence — subsection 53.2(1) or (10)

  (2) Every person who contravenes subsection 53.2(1) or (10) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years or to a fine not exceeding $10,000,000, or to both.

• Marginal note:Continuing offence

  (3) If an offence under subsection 53.2(10) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.

• Marginal note:Officers, etc., of corporations

  (4) If a corporation commits an offence under subsection (1) or (2), any officer, director or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.

• Marginal note:Sections 174 and 175 do not apply

  (5) Sections 174 and 175 do not apply in respect of an offence committed under subsection (1) or (2).

General

Marginal note:Appointment of receiver not to bar jurisdiction

• 54 (1) The fact that a receiver, manager or other official of a carrier, or a receiver of the property of a carrier, has been appointed by a court in Canada, or is managing or operating a mode of transportation under the authority of any such court, is not a bar to the exercise of any jurisdiction granted under this Act, but every such receiver, manager or official is bound to manage and operate the mode of transportation in accordance with this Act and with the orders, regulations and directions made or issued under this Act, notwithstanding the fact that the receiver, manager, official or person has been appointed by or acts under the authority of a court.

• Marginal note:Adaptation orders

  (2) Wherever by reason of insolvency, sale under mortgage or any other cause, a transportation undertaking or a portion of a transportation undertaking is operated, managed or held otherwise than by the carrier, the Agency or the Minister may make any order it considers proper for adapting and applying the provisions of this Act.

PART IIAir Transportation

Interpretation and Application

Marginal note:Definitions

• 55 (1) In this Part,

  aircraft

  aéronef

  aircraft has the same meaning as in subsection 3(1) of the Aeronautics Act; (aéronef)

  air service

  service aérien

  air service means a service, provided by means of an aircraft, that is publicly available for the transportation of passengers or goods, or both; (service aérien)

  basic fare

  prix de base

  basic fare means

  • (a) the fare in the tariff of the holder of a domestic licence that has no restrictions and represents the lowest amount to be paid for one-way air transportation of an adult with reasonable baggage between two points in Canada, or

  • (b) where the licensee has more than one such fare between two points in Canada and the amount of any of those fares is dependent on the time of day or day of the week of travel, or both, the highest of those fares; (prix de base)

  Canadian

  Canadien

  Canadian means a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, a government in Canada or an agent of such a government or a corporation or other entity that is incorporated or formed under the laws of Canada or a province, that is controlled in fact by Canadians and of which at least seventy-five per cent, or such lesser percentage as the Governor in Council may by regulation specify, of the voting interests are owned and controlled by Canadians; (Canadien)

  Canadian aviation document

  document d’aviation canadien

  Canadian aviation document has the same meaning as in subsection 3(1) of the Aeronautics Act; (document d’aviation canadien)

  domestic licence

  Version anglaise seulement

  domestic licence means a licence issued under section 61; (Version anglaise seulement)

  domestic service

  service intérieur

  domestic service means an air service between points in Canada, from and to the same point in Canada or between Canada and a point outside Canada that is not in the territory of another country; (service intérieur)

  international service

  service international

  international service means an air service between Canada and a point in the territory of another country; (service international)

  licensee

  licencié

  licensee means the holder of a licence issued by the Agency under this Part; (licencié)

  non-scheduled international licence

  Version anglaise seulement

  non-scheduled international licence means a licence issued under subsection 73(1); (Version anglaise seulement)

  non-scheduled international service

  service international à la demande

  non-scheduled international service means an international service other than a scheduled international service; (service international à la demande)

  prescribed

  règlement

  prescribed means prescribed by regulations made under section 86; (règlement)

  scheduled international licence

  Version anglaise seulement

  scheduled international licence means a licence issued under subsection 69(1); (Version anglaise seulement)

  scheduled international service

  service international régulier

  scheduled international service means an international service that is a scheduled service pursuant to

  • (a) an agreement or arrangement for the provision of that service to which Canada is a party, or

  • (b) a determination made under section 70; (service international régulier)

  tariff

  tarif

  tariff means a schedule of fares, rates, charges and terms and conditions of carriage applicable to the provision of an air service and other incidental services. (tarif)

• Marginal note:Affiliation

  (2) For the purposes of this Part,

  • (a) one corporation is affiliated with another corporation if

    • (i) one of them is a subsidiary of the other,

    • (ii) both are subsidiaries of the same corporation, or

    • (iii) both are controlled by the same person;

  • (b) if two corporations are affiliated with the same corporation at the same time, they are deemed to be affiliated with each other;

  • (c) a partnership or sole proprietorship is affiliated with another partnership or sole proprietorship if both are controlled by the same person;

  • (d) a corporation is affiliated with a partnership or a sole proprietorship if both are controlled by the same person;

  • (e) a corporation is a subsidiary of another corporation if it is controlled by that other corporation or by a subsidiary of that other corporation;

  • (f) a corporation is controlled by a person other than Her Majesty in right of Canada or a province if

    • (i) securities of the corporation to which are attached more than 50% of the votes that may be cast to elect directors of the corporation are held, directly or indirectly, whether through one or more subsidiaries or otherwise, otherwise than by way of security only, by or for the benefit of that person, and

    • (ii) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the corporation;

  • (g) a corporation is controlled by Her Majesty in right of Canada or a province if

    • (i) the corporation is controlled by Her Majesty in the manner described in paragraph (f), or

    • (ii) in the case of a corporation without share capital, a majority of the directors of the corporation, other than ex officio directors, are appointed by

      • (A) the Governor in Council or the Lieutenant Governor in Council of the province, as the case may be, or

      • (B) a Minister of the government of Canada or the province, as the case may be; and

  • (h) a partnership is controlled by a person if the person holds an interest in the partnership that entitles the person to receive more than 50% of the profits of the partnership or more than 50% of its assets on dissolution.

• Definition of person

  (3) In subsection (2), person includes an individual, a partnership, an association, a corporation, a trustee, an executor, a liquidator of a succession, an administrator or a legal representative.

• Marginal note:Control in fact

  (4) For greater certainty, nothing in subsection (2) shall be construed to affect the meaning of the expression “controlled in fact” in the definition Canadian in subsection (1).

Marginal note:Non-application of Part

• 56 (1) This Part does not apply to a person that uses an aircraft on behalf of the Canadian Armed Forces or any other armed forces cooperating with the Canadian Armed Forces.

• Marginal note:Specialty service exclusion

  (2) This Part does not apply to the operation of an air flight training service, aerial inspection service, aerial construction service, aerial photography service, aerial forest fire management service, aerial spraying service or any other prescribed air service.

• Marginal note:Emergency service exclusion

  (3) This Part does not apply to the provision of an air service if the federal government or a provincial or a municipal government declares an emergency under federal or provincial law, and that government directly or indirectly requests that the air service be provided to respond to the emergency.

• Marginal note:Public interest

  (4) The Minister may, by order, prohibit the provision of an air service under subsection (3) or require the discontinuance of that air service if, in the opinion of the Minister, it is in the public interest to do so.

• Marginal note:Not a statutory instrument

  (5) The order is not a statutory instrument within the meaning of the Statutory Instruments Act.

56.1 [Repealed, 2007, c. 19, s. 15]

56.2 [Repealed, 2007, c. 19, s. 15]

56.3 [Repealed, 2007, c. 19, s. 15]

56.4 [Repealed, 2007, c. 19, s. 15]

56.5 [Repealed, 2007, c. 19, s. 15]

56.6 [Repealed, 2007, c. 19, s. 15]

56.7 [Repealed, 2007, c. 19, s. 15]

Prohibitions

Marginal note:Prohibition re operation

57 No person shall operate an air service unless, in respect of that service, the person

• (a) holds a licence issued under this Part;

• (b) holds a Canadian aviation document; and

• (c) has the prescribed liability insurance coverage.

Marginal note:Licence not transferable

58 A licence issued under this Part for the operation of an air service is not transferable.

Marginal note:Prohibition re sale

59 No person shall sell, cause to be sold or publicly offer for sale in Canada an air service unless, if required under this Part, a person holds a licence issued under this Part in respect of that service and that licence is not suspended.

Marginal note:Provision of aircraft with flight crew

• 60 (1) No person shall provide all or part of an aircraft, with a flight crew, to a licensee for the purpose of providing an air service pursuant to the licensee’s licence and no licensee shall provide an air service using all or part of an aircraft, with a flight crew, provided by another person except

  • (a) in accordance with regulations made by the Agency respecting disclosure of the identity of the operator of the aircraft and other related matters; and

  • (b) where prescribed, with the approval of the Agency.

• Marginal note:Conditions and Ministerial directions

  (2) Approval by the Agency under subsection (1) is subject to any directions to the Agency issued by the Minister and to any terms and conditions that the Agency may specify in the approval, including terms and conditions respecting routes to be followed, points or areas to be served, size and type of aircraft to be operated, schedules, places of call, tariffs, fares, rates and charges, insurance, carriage of passengers and, subject to the Canada Post Corporation Act, carriage of goods.

Licence for Domestic Service

Marginal note:Issue of licence

61 On application to the Agency and on payment of the specified fee, the Agency shall issue a licence to operate a domestic service to the applicant if

• (a) the applicant establishes in the application to the satisfaction of the Agency that the applicant

  • (i) is a Canadian,

  • (ii) holds a Canadian aviation document in respect of the service to be provided under the licence,

  • (iii) has the prescribed liability insurance coverage in respect of the service to be provided under the licence, and

  • (iv) meets prescribed financial requirements; and

• (b) the Agency is satisfied that the applicant has not contravened section 59 in respect of a domestic service within the preceding twelve months.

Marginal note:Qualification exemption

• 62 (1) Where the Minister considers it necessary or advisable in the public interest that a domestic licence be issued to a person who is not a Canadian, the Minister may, by order, on such terms and conditions as may be specified in the order, exempt the person from the application of subparagraph 61(a)(i) for the duration of the order.

• Marginal note:Statutory Instruments Act

  (2) The order is not a regulation for the purposes of the Statutory Instruments Act.

• Marginal note:Publication

  (3) The Minister must, as soon as feasible, make the name of the person who is exempted and the exemption’s duration accessible to the public through the Internet or by any other means that the Minister considers appropriate.

Marginal note:Mandatory suspension or cancellation

• 63 (1) The Agency shall suspend or cancel the domestic licence of a person where the Agency determines that, in respect of the service for which the licence was issued, the person ceases to meet any of the requirements of subparagraphs 61(a)(i) to (iii).

• Marginal note:Discretionary suspension or cancellation

  (2) The Agency may suspend or cancel a domestic licence

  • (a) where the Agency determines that, in respect of the service for which the domestic licence was issued, the licensee has contravened, or does not meet the requirements of, any regulation or order made under this Part or any provision of this Part other than subparagraphs 61(a)(i) to (iii); or

  • (b) subject to section 64, in accordance with a request from the licensee for the suspension or cancellation.

• Marginal note:Reinstatement condition

  (3) The Agency shall not reinstate a domestic licence that has been suspended for sixty days or longer unless the licensee establishes to the satisfaction of the Agency that the person meets the prescribed financial requirements.

Marginal note:Notice of discontinuance or reduction of certain services

• 64 (1) Where a licensee proposes to discontinue a domestic service or to reduce the frequency of such a service to a point to less than one flight per week and, as a result of the proposed discontinuance or reduction, there will be only one licensee or no licensee offering at least one flight per week to that point, the licensee shall give notice of the proposal in prescribed form and manner to such persons as are prescribed.

• Marginal note:Notice of discontinuance of certain services

  (1.1) If a licensee proposes to discontinue its year-round non-stop scheduled air service between two points in Canada and that discontinuance would result in a reduction, as compared to the week before the proposal is to take effect, of at least 50% of the weekly passenger-carrying capacity of all licensees operating year-round non-stop scheduled air services between those two points, the licensee shall give notice of the proposal in the prescribed form and manner to the prescribed persons.

• Marginal note:Discussion with elected officials

  (1.2) A licensee shall, as soon as practicable, provide an opportunity for elected officials of the municipal or local government of the community of the point or points, as the case may be, to meet and discuss with the licensee the impact of the proposed discontinuance or reduction.

• Marginal note:Notice period

  (2) A licensee shall not implement a proposal referred to in subsection (1) or (1.1) until the expiry of 120 days, or 30 days if the service referred to in that subsection has been in operation for less than one year, after the notice is given or until the expiry of any shorter period that the Agency may, on application by the licensee, specify by order.

• Marginal note:Considerations re whether exemption to be granted

  (3) In considering whether to specify a shorter period under subsection (2), the Agency shall have regard to

  • (a) the adequacy of alternative modes of public transportation available at or in the vicinity of the point referred to in subsection (1) or between the points referred to in subsection (1.1);

  • (b) other means by which air service to the point or between the points is or is likely to be provided;

  • (c) whether the licensee has complied with subsection (1.2); and

  • (d) the particular circumstances of the licensee.

• Definition of non-stop scheduled air service

  (4) In this section, non-stop scheduled air service means an air service operated between two points without any stops in accordance with a published timetable or on a regular basis.

Marginal note:Complaints re non-compliance

65 Where, on complaint in writing to the Agency by any person, the Agency finds that a licensee has failed to comply with section 64 and that it is practicable in the circumstances for the licensee to comply with an order under this section, the Agency may, by order, direct the licensee to reinstate the service referred to in that section

• (a) for such a period, not exceeding 120 days after the date of the finding by the Agency, as the Agency deems appropriate; and

• (b) at such a frequency as the Agency may specify.

Marginal note:Unreasonable fares or rates

• 66 (1) If, on complaint in writing to the Agency by any person, the Agency finds that a licensee, including affiliated licensees, is the only person providing a domestic service between two points and that a fare, cargo rate or increase in a fare or cargo rate published or offered in respect of the service is unreasonable, the Agency may, by order,

  • (a) disallow the fare, rate or increase;

  • (b) direct the licensee to amend its tariff by reducing the fare, rate or increase by the amounts and for the periods that the Agency considers reasonable in the circumstances; or

  • (c) direct the licensee, if practicable, to refund amounts specified by the Agency, with interest calculated in the prescribed manner, to persons determined by the Agency to have been overcharged by the licensee.

• Marginal note:Complaint of inadequate range of fares or rates

  (2) If, on complaint in writing to the Agency by any person, the Agency finds that a licensee, including affiliated licensees, is the only person providing a domestic service between two points and that it is offering an inadequate range of fares or cargo rates in respect of that service, the Agency may, by order, direct the licensee, for a period that the Agency considers reasonable in the circumstances, to publish and apply in respect of that service one or more additional fares or cargo rates that the Agency considers reasonable in the circumstances.

• Marginal note:Relevant information

  (3) When making a finding under subsection (1) or (2) that a fare, cargo rate or increase in a fare or cargo rate published or offered in respect of a domestic service between two points is unreasonable or that a licensee is offering an inadequate range of fares or cargo rates in respect of a domestic service between two points, the Agency may take into consideration any information or factor that it considers relevant, including

  • (a) historical data respecting fares or cargo rates applicable to domestic services between those two points;

  • (b) fares or cargo rates applicable to similar domestic services offered by the licensee and one or more other licensees, including terms and conditions related to the fares or cargo rates, the number of seats available at those fares and the cargo capacity and cargo container types available at those rates;

  • (b.1) the competition from other modes of transportation, if the finding is in respect of a cargo rate, an increase in a cargo rate or a range of cargo rates; and

  • (c) any other information provided by the licensee, including information that the licensee is required to provide under section 83.

• Marginal note:Alternative domestic services

  (4) The Agency may find that a licensee is the only person providing a domestic service between two points if every alternative domestic service between those points is, in the Agency’s opinion, unreasonable, taking into consideration the number of stops, the number of seats offered, the frequency of service, the flight connections and the total travel time and, more specifically, in the case of cargo, the cargo capacity and cargo container types available.

• Marginal note:Alternative service

  (4.1) The Agency shall not make an order under subsection (1) or (2) in respect of a licensee found by the Agency to be the only person providing a domestic service between two points if, in the Agency’s opinion, there exists another domestic service that is not between the two points but is a reasonable alternative taking into consideration the convenience of access to the service, the number of stops, the number of seats offered, the frequency of service, the flight connections and the total travel time and, more specifically, in the case of cargo, the cargo capacity and cargo container types available.

• Marginal note:Consideration of representations

  (5) Before making a direction under paragraph (1)(b) or subsection (2), the Agency shall consider any representations that the licensee has made with respect to what is reasonable in the circumstances.

• (6) and (7) [Repealed, 2007, c. 19, s. 19]

• Marginal note:Confidentiality of information

  (8) The Agency may take any measures or make any order that it considers necessary to protect the confidentiality of any of the following information that it is considering in the course of any proceedings under this section:

  • (a) information that constitutes a trade secret;

  • (b) information the disclosure of which would likely cause material financial loss to, or prejudice to the competitive position of, the person providing the information or on whose behalf it is provided; and

  • (c) information the disclosure of which would likely interfere with contractual or other negotiations being conducted by the person providing the information or on whose behalf it is provided.

Marginal note:Tariffs to be made public

• 67 (1) The holder of a domestic licence shall

  • (a) display in a prominent place at the business offices of the licensee a sign indicating that the tariffs for the domestic service offered by the licensee, including the terms and conditions of carriage, are available for public inspection at the business offices of the licensee, and allow the public to make such inspections;

  • (a.1) publish the terms and conditions of carriage on any Internet site used by the licensee for selling the domestic service offered by the licensee;

  • (b) in its tariffs, specifically identify the basic fare between all points for which a domestic service is offered by the licensee; and

  • (c) retain a record of its tariffs for a period of not less than three years after the tariffs have ceased to have effect.

• Marginal note:Prescribed tariff information to be included

  (2) A tariff referred to in subsection (1) shall include such information as may be prescribed.

• Marginal note:No fares, etc., unless set out in tariff

  (3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

• Marginal note:Copy of tariff on payment of fee

  (4) The holder of a domestic licence shall provide a copy or excerpt of its tariffs to any person on request and on payment of a fee not exceeding the cost of making the copy or excerpt.

Marginal note:Fares or rates not set out in tariff

67.1 If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

• (a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

• (b) compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and

• (c) take any other appropriate corrective measures.

Marginal note:When unreasonable or unduly discriminatory terms or conditions

• 67.2 (1) If, on complaint in writing to the Agency by any person, the Agency finds that the holder of a domestic licence has applied terms or conditions of carriage applicable to the domestic service it offers that are unreasonable or unduly discriminatory, the Agency may suspend or disallow those terms or conditions and substitute other terms or conditions in their place.

• Marginal note:Prohibition on advertising

  (2) The holder of a domestic licence shall not advertise or apply any term or condition of carriage that is suspended or has been disallowed.

Marginal note:Non-application of fares, etc.

• 68 (1) Sections 66 to 67.2 do not apply in respect of fares, rates or charges applicable to a domestic service provided for under a contract between a holder of a domestic licence and another person whereby the parties to the contract agree to keep its provisions confidential.

• Marginal note:Non-application of terms and conditions

  (1.1) Sections 66 to 67.2 do not apply in respect of terms and conditions of carriage applicable to a domestic service provided for under a contract referred to in subsection (1) to which an employer is a party and that relates to travel by its employees.

• Marginal note:Provisions regarding exclusive use of services

  (2) The parties to the contract shall not include in it provisions with respect to the exclusive use by the other person of a domestic service operated by the holder of the domestic licence between two points in accordance with a published timetable or on a regular basis, unless the contract is for all or a significant portion of the capacity of a flight or a series of flights.

• Marginal note:Retention of contract required

  (3) The holder of a domestic licence who is a party to the contract shall retain a copy of it for a period of not less than three years after it has ceased to have effect and, on request made within that period, shall provide a copy of it to the Agency.

Licence for Scheduled International Service

Marginal note:Issue of licence

• 69 (1) On application to the Agency and on payment of the specified fee, the Agency shall issue a licence to operate a scheduled international service to the applicant if

  • (a) the applicant establishes in the application to the satisfaction of the Agency that the applicant

    • (i) is, pursuant to subsection (2) or (3), eligible to hold the licence,

    • (ii) holds a Canadian aviation document in respect of the service to be provided under the licence,

    • (iii) has the prescribed liability insurance coverage in respect of the service to be provided under the licence, and

    • (iv) where the applicant is a Canadian, meets the prescribed financial requirements; and

  • (b) the Agency is satisfied that the applicant has not contravened section 59 in respect of the service to be provided under the licence within the preceding twelve months.

• Marginal note:Eligibility of Canadians

  (2) The Minister may, in writing, designate any Canadian as eligible to hold a scheduled international licence. That Canadian remains eligible while the designation remains in force.

• Marginal note:Eligibility of non-Canadians

  (3) A non-Canadian is eligible to hold a scheduled international licence if the non-Canadian

  • (a) has been designated by a foreign government or an agent of a foreign government to operate an air service under the terms of an agreement or arrangement between that government and the Government of Canada; and

  • (b) holds, in respect of the air service, a document issued by a foreign government or agent that, in respect of the service to be provided under the document, is equivalent to a scheduled international licence.

Marginal note:Determination of scheduled international service

70 The Minister may, in writing to the Agency,

• (a) determine that an international service is a scheduled international service; or

• (b) withdraw a determination made under paragraph (a).

Marginal note:Terms and conditions of scheduled international licence

• 71 (1) Subject to any directions issued to the Agency under section 76, the Agency may, on the issuance of a scheduled international licence or from time to time thereafter, make the licence subject, in addition to any terms and conditions prescribed in respect of the licence, to such terms and conditions as the Agency deems to be consistent with the agreement, convention or arrangement pursuant to which the licence is being issued, including terms and conditions respecting routes to be followed, points or areas to be served, size and type of aircraft to be operated, schedules, places of call, tariffs, fares, rates and charges, insurance, carriage of passengers and, subject to the Canada Post Corporation Act, carriage of goods.

• Marginal note:Compliance with terms and conditions

  (2) The holder of a scheduled international licence shall comply with every term and condition to which the licence is subject.

Marginal note:Mandatory suspension or cancellation

• 72 (1) The Agency shall suspend or cancel a scheduled international licence where the Agency determines that, in respect of the service for which the licence was issued, the licensee ceases to meet any of the requirements of subparagraphs 69(1)(a)(i) to (iii).

• Marginal note:Discretionary suspension or cancellation

  (2) The Agency may suspend or cancel a scheduled international licence

  • (a) where the Agency determines that, in respect of the service for which the licence was issued, the licensee has contravened, or does not meet the requirements of, any regulation or order made under this Part or any provision of this Part other than subparagraphs 69(1)(a)(i) to (iii); or

  • (b) in accordance with a request from the licensee for the suspension or cancellation.

• Marginal note:Reinstatement condition

  (3) The Agency shall not reinstate the scheduled international licence of a Canadian that has been suspended for sixty days or longer unless the Canadian establishes to the satisfaction of the Agency that the Canadian meets the prescribed financial requirements.

Licence for Non-scheduled International Service

Marginal note:Issue of licence

• 73 (1) Subject to any directions issued to the Agency under section 76, on application to the Agency and on payment of the specified fee, the Agency shall issue a licence to operate a non-scheduled international service to the applicant if

  • (a) the applicant establishes in the application to the satisfaction of the Agency that the applicant

    • (i) is a Canadian,

    • (ii) holds a Canadian aviation document in respect of the service to be provided under the licence,

    • (iii) has the prescribed liability insurance coverage in respect of the service to be provided under the licence, and

    • (iv) meets prescribed financial requirements; and

  • (b) the Agency is satisfied that the applicant has not contravened section 59 in respect of the service to be provided under the licence within the preceding twelve months.

• Marginal note:Non-Canadian applicant

  (2) Subject to any directions issued to the Agency under section 76, on application to the Agency and on payment of the specified fee, the Agency may issue a non-scheduled international licence to a non-Canadian applicant if the applicant establishes in the application to the satisfaction of the Agency that the applicant

  • (a) holds a document issued by the government of the applicant’s state or an agent of that government that, in respect of the service to be provided under the document, is equivalent to the non-scheduled international licence for which the application is being made; and

  • (b) meets the requirements of subparagraphs (1)(a)(ii) and (iii) and paragraph (1)(b).

Marginal note:Terms and conditions of non-scheduled international licence

• 74 (1) Subject to any directions issued to the Agency under section 76, the Agency may, on the issuance of a non-scheduled international licence or from time to time thereafter, make the licence subject, in addition to any terms and conditions prescribed in respect of the licence, to such terms and conditions as the Agency deems appropriate, including terms and conditions respecting points or areas to be served, size and type of aircraft to be operated, schedules, places of call, tariffs, fares, rates and charges, insurance, carriage of passengers and, subject to the Canada Post Corporation Act, carriage of goods.

• Marginal note:Compliance with terms and conditions

  (2) The holder of a non-scheduled international licence shall comply with every term and condition to which the licence is subject.

Marginal note:Mandatory suspension or cancellation

• 75 (1) The Agency shall suspend or cancel a non-scheduled international licence where the Agency determines that, in respect of the service for which the licence was issued, the licensee ceases to meet any of the requirements of

  • (a) in respect of a Canadian licensee, subparagraphs 73(1)(a)(i) to (iii); and

  • (b) in respect of a non-Canadian licensee, subparagraphs 73(1)(a)(ii) and (iii) and paragraph 73(2)(a).

• Marginal note:Discretionary suspension or cancellation

  (2) The Agency may suspend or cancel a non-scheduled international licence

  • (a) where the Agency determines that, in respect of the service for which the licence was issued, the licensee has contravened, or does not meet the requirements of, any regulation or order made under this Part or any provision of this Part other than the provisions referred to in paragraphs (1)(a) and (b); or

  • (b) in accordance with a request from the licensee for the suspension or cancellation.

• Marginal note:Reinstatement condition

  (3) The Agency shall not reinstate the non-scheduled international licence of a Canadian that has been suspended for sixty days or longer unless the Canadian establishes to the satisfaction of the Agency that the Canadian meets the prescribed financial requirements.

Issuance of International Charter Permits

Marginal note:Issuance, amendment and cancellation of permits

75.1 The issuance of a permit for the operation of an international charter to a licensee and the amendment or cancellation of the permit shall be made in accordance with regulations made under paragraph 86(1)(e).

Ministerial Directions for International Service

Marginal note:Minister may issue directions

• 76 (1) Where the Minister determines that it is necessary or advisable to provide direction to the Agency in respect of the exercise of any of its powers or the performance of any of its duties or functions under this Part relating to international service,

  • (a) in the interest of the safety or security of international civil aviation,

  • (b) in connection with the implementation or administration of an international agreement, convention or arrangement respecting civil aviation to which Canada is a party,

  • (c) in the interest of international comity or reciprocity,

  • (d) for the purpose of enforcing Canada’s rights under an international agreement, convention or arrangement respecting civil aviation or responding to acts, policies or practices by a contracting party to any such agreement, convention or arrangement, or by an agency or citizen of such a party, that adversely affect or lead either directly or indirectly to adverse effects on Canadian international civil aviation services, or

  • (e) in connection with any other matter concerning international civil aviation as it affects the public interest,

  the Minister may, subject to subsection (3), issue to the Agency directions that, notwithstanding any other provision of this Part, are binding on, and shall be complied with by, the Agency in the exercise of its powers or the performance of its duties or functions under this Part relating to international service.

• Marginal note:Nature of directions

  (2) Directions issued under subsection (1) may relate to

  • (a) persons or classes of persons to whom licences to operate an international service shall or shall not be issued;

  • (b) the terms and conditions of such licences, or their variation;

  • (c) the suspension or cancellation of such licences; and

  • (d) any other matter concerning international service that is not governed by or under the Aeronautics Act.

• Marginal note:Concurrence required for certain directions

  (3) A direction by the Minister relating to a matter referred to in paragraph (1)(c), (d) or (e) may be issued only with the concurrence of the Minister of Foreign Affairs.

Duties and Powers of Agency

Marginal note:Duties and functions of Agency under international agreements, etc.

77 Where the Agency is identified as the aeronautical authority for Canada under an international agreement, convention or arrangement respecting civil aviation to which Canada is a party, or is directed by the Minister to perform any duty or function of the Minister pursuant to any such agreement, convention or arrangement, the Agency shall act as the aeronautical authority for Canada or perform the duty or function in accordance with the agreement, convention, arrangement or direction, as the case may be.

Marginal note:Agency powers qualified by certain agreements, etc.

• 78 (1) Subject to any directions issued to the Agency under section 76, the powers conferred on the Agency by this Part shall be exercised in accordance with any international agreement, convention or arrangement relating to civil aviation to which Canada is a party.

• Marginal note:Variations from agreements, etc.

  (2) Notwithstanding subsection (1) and subject to any directions issued to the Agency under section 76, the Agency may issue a licence or suspend a licence, or vary the terms and conditions of a licence, on a temporary basis for international air services that are not permitted in an agreement, convention or arrangement relating to civil aviation to which Canada is a party.

Marginal note:Agency may refuse licence — individuals

• 79 (1) Where the Agency has suspended or cancelled the licence of an individual under this Part or where an individual has contravened section 59, the Agency may, for a period not exceeding twelve months after the date of the suspension, cancellation or contravention, refuse to issue a licence in respect of an air service to the individual or to any corporation of which the individual is a principal.

• Marginal note:Agency may refuse licence — corporations

  (2) Where the Agency has suspended or cancelled the licence of a corporation under this Part or where a corporation has contravened section 59, the Agency may, for a period not exceeding twelve months after the date of the suspension, cancellation or contravention, refuse to issue a licence in respect of an air service to

  • (a) the corporation;

  • (b) any person who, as a principal of the corporation, directed, authorized, assented to, acquiesced in or participated in a contravention that gave rise to the suspension or cancellation; and

  • (c) any body corporate of which the corporation or the person referred to in paragraph (b) is a principal.

Marginal note:Exemption

• 80 (1) The Agency may, by order, on such terms and conditions as it deems appropriate, exempt a person from the application of any of the provisions of this Part or of a regulation or order made under this Part where the Agency is of the opinion that

  • (a) the person has substantially complied with the provision;

  • (b) an action taken by the person is as effective as actual compliance with the provision; or

  • (c) compliance with the provision by the person is unnecessary, undesirable or impractical.

• Marginal note:Exemption not to provide certain relief

  (2) No exemption shall be granted under subsection (1) that has the effect of relieving a person from any provision of this Part that requires a person to be a Canadian and to have a Canadian aviation document and prescribed liability insurance coverage in respect of an air service.

• Marginal note:Exemption not to provide certain relief — section 69

  (3) No exemption shall be granted under subsection (1) that has the effect of relieving a person from the provisions of section 69 that require, in order to be eligible to hold a scheduled international licence,

  • (a) a Canadian to be designated by the Minister to hold such a licence; or

  • (b) a non-Canadian to be designated by a foreign government or an agent of a foreign government to operate an air service under the terms of an agreement or arrangement between that government and the Government of Canada.

Marginal note:Inquiry into licensing matters

81 For the purposes of ensuring compliance with this Part, the Agency may inquire into any matter for which a licence, permit or other document is required under this Part.

Marginal note:Licensee to provide notification

82 Every licensee shall notify the Agency without delay, in writing, if

• (a) the liability insurance coverage in respect of the air service for which the licence is issued is cancelled or is altered in a manner that results in the failure by the licensee to have the prescribed liability insurance coverage for that service;

• (b) the licensee’s operations change in a manner that results in the failure by the licensee to have the prescribed liability insurance coverage for that service; or

• (c) any change occurs that affects, or is likely to affect, the licensee’s status as a Canadian.

Marginal note:Disclosure of information required

83 A licensee shall, at the request of the Agency, provide the Agency with information or documents available to the licensee that relate to any complaint under review or any investigation being conducted by the Agency under this Part.

Marginal note:Notification of agent required

• 84 (1) A licensee who has an agent in Canada shall, in writing, provide the Agency with the agent’s name and address.

• Marginal note:Appointment and notice of agent

  (2) A licensee who does not have a place of business or an agent in Canada shall appoint an agent who has a place of business in Canada and, in writing, provide the Agency with the agent’s name and address.

Marginal note:Notice of change of address

85 Where the address of a licensee’s principal place of business in Canada or the name or address of the licensee’s agent in Canada is changed, the licensee shall notify the Agency in writing of the change without delay.

Air Travel Complaints

Marginal note:Review and mediation

• 85.1 (1) If a person has made a complaint under any provision of this Part, the Agency, or a person authorized to act on the Agency’s behalf, shall review and may attempt to resolve the complaint and may, if appropriate, mediate or arrange for mediation of the complaint.

• Marginal note:Report

  (2) The Agency or a person authorized to act on the Agency’s behalf shall report to the parties outlining their positions regarding the complaint and any resolution of the complaint.

• Marginal note:Complaint not resolved

  (3) If the complaint is not resolved under this section to the complainant’s satisfaction, the complainant may request the Agency to deal with the complaint in accordance with the provisions of this Part under which the complaint has been made.

• Marginal note:Further proceedings

  (4) A member of the Agency or any person authorized to act on the Agency’s behalf who has been involved in attempting to resolve or mediate the complaint under this section may not act in any further proceedings before the Agency in respect of the complaint.

• Marginal note:Extension of time

  (5) The period of 120 days referred to in subsection 29(1) shall be extended by the period taken by the Agency or any person authorized to act on the Agency’s behalf to review and attempt to resolve or mediate the complaint under this section.

• Marginal note:Part of annual report

  (6) The Agency shall, as part of its annual report, indicate the number and nature of the complaints filed under this Part, the names of the carriers against whom the complaints were made, the manner complaints were dealt with and the systemic trends observed.

Regulations

Marginal note:Regulations

• 86 (1) The Agency may make regulations

  • (a) classifying air services;

  • (b) classifying aircraft;

  • (c) prescribing liability insurance coverage requirements for air services or aircraft;

  • (d) prescribing financial requirements for each class of air service or aircraft;

  • (e) respecting the issuance, amendment and cancellation of permits for the operation of international charters;

  • (f) respecting the duration and renewal of licences;

  • (g) respecting the amendment of licences;

  • (h) respecting traffic and tariffs, fares, rates, charges and terms and conditions of carriage for international service and

    • (i) providing for the disallowance or suspension by the Agency of any tariff, fare, rate or charge,

    • (ii) providing for the establishment and substitution by the Agency of any tariff, fare, rate or charge disallowed by the Agency,

    • (iii) authorizing the Agency to direct a licensee or carrier to take corrective measures that the Agency considers appropriate and to pay compensation for any expense incurred by a person adversely affected by the licensee’s or carrier’s failure to apply the fares, rates, charges or terms or conditions of carriage applicable to the service it offers that were set out in its tariffs, and

    • (iv) requiring a licensee or carrier to display the terms and conditions of carriage for its international service on its Internet site, if the site is used for selling the international service of the licensee or carrier;

  • (i) requiring licensees to file with the Agency any documents and information relating to activities under their licences that are necessary for the purposes of enabling the Agency to exercise its powers and perform its duties and functions under this Part and respecting the manner in which and the times at which the documents and information are to be filed;

  • (j) requiring licensees to include in contracts or arrangements with travel wholesalers, tour operators, charterers or other persons associated with the provision of air services to the public, or to make those contracts and arrangements subject to, terms and conditions specified or referred to in the regulations;

  • (k) defining words and expressions for the purposes of this Part;

  • (l) excluding a person from any of the requirements of this Part;

  • (m) prescribing any matter or thing that by this Part is to be prescribed; and

  • (n) generally for carrying out the purposes and provisions of this Part.

• Marginal note:Exclusion not to provide certain relief

  (2) No regulation shall be made under paragraph (1)(l) that has the effect of relieving a person from any provision of this Part that requires a person to be a Canadian and to have a Canadian aviation document and prescribed liability insurance coverage in respect of an air service.

• (3) [Repealed, 2007, c. 19, s. 26]

Marginal note:Advertising regulations

• 86.1 (1) The Agency shall make regulations respecting advertising in all media, including on the Internet, of prices for air services within, or originating in, Canada.

• Marginal note:Contents of regulations

  (2) Without limiting the generality of subsection (1), regulations shall be made under that subsection requiring a carrier who advertises a price for an air service to include in the price all costs to the carrier of providing the service and to indicate in the advertisement all fees, charges and taxes collected by the carrier on behalf of another person in respect of the service, so as to enable a purchaser of the service to readily determine the total amount to be paid for the service.

• Marginal note:Regulations may prescribe

  (3) Without limiting the generality of subsection (1), the regulations may prescribe what are costs, fees, charges and taxes for the purposes of subsection (2).

Marginal note:Regulations and orders

86.2 A regulation or order made under this Part may be conditional or unconditional or qualified or unqualified and may be general or restricted to a specific area, person or thing or group or class of persons or things.

PART IIIRailway Transportation

DIVISION IInterpretation and Application

Marginal note:Definitions

87 In this Part,

land

terres

land includes an interest in land and, in relation to land in the Province of Quebec, includes the interest of a lessee; (terres)

metropolitan area

région métropolitaine

metropolitan area means any area that is classified by Statistics Canada in its most recent census of Canada as a census metropolitan area; (région métropolitaine)

operate

exploitation

operate includes, with respect to a railway, any act necessary for the maintenance of the railway or the operation of a train; (exploitation)

point of destination

point de destination

point of destination means, with respect to traffic on a railway line that is subject to a transfer described in subsection 128(4) or 129(2), the point where the traffic is transferred from the line of a railway company to a line to which this Part does not apply; (point de destination)

point of origin

point d’origine

point of origin means, with respect to traffic on a railway line that is subject to a transfer described in subsection 128(4) or 129(2), the point where the traffic is transferred to the line of a railway company from a line to which this Part does not apply; (point d’origine)

public passenger service provider

société de transport publique

public passenger service provider means VIA Rail Canada Inc., a passenger rail service provider designated by the Minister or an urban transit authority; (société de transport publique)

railway

chemin de fer

railway means a railway within the legislative authority of Parliament and includes

• (a) branches, extensions, sidings, railway bridges, tunnels, stations, depots, wharfs, rolling stock, equipment, stores, or other things connected with the railway, and

• (b) communications or signalling systems and related facilities and equipment used for railway purposes; (chemin de fer)

railway company

compagnie de chemin de fer

railway company means a person who holds a certificate of fitness under section 92, a partnership of such persons or a person who is mentioned in subsection 90(2); (compagnie de chemin de fer)

road

route

road means any way or course, whether public or not, available for vehicular or pedestrian use; (route)

Special Act

loi spéciale

Special Act means an Act under which a railway company has authority to construct or operate a railway, or that is enacted with special reference to a railway, and includes

• (a) letters patent constituting a company’s authority to construct or operate a railway, granted before April 1, 1969, under any Act, and the Act under which the letters patent were granted or confirmed, and

• (b) letters patent incorporating a company under section 11 of the Railway Act on or after April 1, 1969, whose objects are the construction or operation of a railway in Canada; (loi spéciale)

tariff

tarif

tariff means a schedule of rates, charges, terms and conditions applicable to the movement of traffic and incidental services; (tarif)

traffic

transport ou trafic

traffic means the traffic of goods, including equipment required for their movement; (transport ou trafic)

urban transit authority

administration de transport de banlieue

urban transit authority means an entity owned or controlled by the federal government or a provincial, municipal or district government that provides commuter services. (administration de transport de banlieue)

Marginal note:Application

• 88 (1) This Part applies to all persons, railway companies and railways within the legislative authority of Parliament.

• Marginal note:Special cases

  (2) Without limiting the effect of subsection (1), this Part applies to

  • (a) a company operating a railway from the United States into Canada; and

  • (b) a railway, or a portion of a railway, whether or not constructed under the authority of an Act of Parliament, that is owned, controlled, leased or operated by a person who operates a railway within the legislative authority of Parliament.

• Marginal note:Works for the general advantage of Canada

  (3) A railway or a portion of a railway mentioned in paragraph (2)(b) is declared to be a work for the general advantage of Canada.

• Marginal note:Cessation of declaration

  (4) A declaration by subsection (3) or by any other Act of Parliament that a railway is a work for the general advantage of Canada, or for the advantage of two or more provinces, ceases to have effect with respect to a line of the railway, or a portion of it, whose operation is discontinued under Division V or is the subject of a transfer under that Division to a person other than a company mentioned in paragraph (2)(b).

Marginal note:Special Act railways declared to be works for general advantage of Canada

89 If the construction or operation of a railway is authorized by a Special Act passed by the legislature of a province and the railway is declared by an Act of Parliament to be a work for the general advantage of Canada, this Part applies to the railway to the exclusion of any general railway Act of the province and any provisions of the Special Act that are inconsistent with this Part.

DIVISION IIConstruction and Operation of Railways

Certificate of Fitness

Marginal note:Certificate required

• 90 (1) No person shall construct or operate a railway without a certificate of fitness.

• Marginal note:Exception — purchaser of railway

  (2) Subsection (1) does not apply to a purchaser of a railway, or a portion of a railway, for a period of sixty days after the purchase if the railway or portion is purchased

  • (a) under a trust deed or mortgage;

  • (b) at the instance of the holders of a mortgage, bond or debenture for the payment of which a charge has been created on the railway or portion; or

  • (c) under any other lawful proceeding.

Marginal note:Application for certificate of fitness

• 91 (1) Any person may apply for a certificate of fitness for a railway, including a person who owns or leases the railway or controls, either directly or indirectly, a person who owns or leases the railway.

• Marginal note:Application for certain types of operations

  (2) If a person proposes to operate in Canada primarily on the railway of another railway company, the application must indicate the termini and route of every line of railway proposed to be operated.

Marginal note:Issuance of certificate of fitness

• 92 (1) The Agency shall issue a certificate of fitness for the proposed construction or operation of a railway if the Agency is satisfied that there will be adequate liability insurance coverage for the proposed construction or operation, as determined in accordance with the regulations.

• Marginal note:Termini and route

  (2) A certificate of fitness issued pursuant to an application mentioned in subsection 91(2) must specify the termini and route of every railway line to be operated.

• Marginal note:Regulations

  (3) The Agency may make regulations for determining the adequacy of liability insurance coverage, including self-insurance.

Marginal note:Variation of certificate

• 93 (1) The Agency may, on application, vary a certificate of fitness

  • (a) to change the termini or route of a line specified in the certificate;

  • (b) to add a line to the certificate; or

  • (c) to reflect a change in railway operations or circumstances relating to those operations.

• Marginal note:Variation when running rights granted

  (2) The Agency may vary a certificate of fitness when it

  • (a) makes an order under paragraph 116(4)(e) that requires a railway company to grant a right to the holder of the certificate; or

  • (b) grants a right under section 138 to the holder of the certificate.

Marginal note:Notice of insurance changes

• 94 (1) The holder of a certificate of fitness shall notify the Agency in writing without delay if

  • (a) the liability insurance coverage is cancelled or altered so that it may no longer be adequate; or

  • (b) the construction or operation has changed so that the liability insurance coverage may no longer be adequate.

• Marginal note:Suspension or cancellation

  (2) The Agency may suspend or cancel the certificate if it determines that the liability insurance coverage is no longer adequate.

General Powers of Railway Companies

Marginal note:Powers

• 95 (1) Subject to the provisions of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:

  • (a) make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cuttings and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway;

  • (b) divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;

  • (c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;

  • (d) divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and

  • (e) do anything else necessary for the construction or operation of the railway.

• Marginal note:Minimal damage

  (2) The railway company shall do as little damage as possible in the exercise of the powers.

• Marginal note:Restoration

  (3) If the railway company diverts or alters anything mentioned in paragraph (1)(b) or (d), the company shall restore it as nearly as possible to its former condition, or shall put it in a condition that does not substantially impair its usefulness.

• Marginal note:Compensation

  (4) The railway company shall pay compensation to a person who sustains actual loss or damage from the exercise of the powers and the compensation must equal the amount of the loss or damage that the company would be liable to pay the person if the powers had not been conferred by statute.

Noise and Vibration

Marginal note:Obligation

95.1 When constructing or operating a railway, a railway company shall cause only such noise and vibration as is reasonable, taking into account

• (a) its obligations under sections 113 and 114, if applicable;

• (b) its operational requirements; and

• (c) the area where the construction or operation takes place.

Marginal note:Guidelines

• 95.2 (1) The Agency shall issue, and publish in any manner that it considers appropriate, guidelines with respect to

  • (a) the elements that the Agency will use to determine whether a railway company is complying with section 95.1; and

  • (b) the collaborative resolution of noise and vibration complaints relating to the construction or operation of railways.

• Marginal note:Consultations

  (2) The Agency must consult with interested parties, including municipal governments, before issuing any guidelines.

• Marginal note:Not statutory instruments

  (3) The guidelines are not statutory instruments within the meaning of the Statutory Instruments Act.

Marginal note:Complaints and investigations

• 95.3 (1) On receipt of a complaint made by any person that a railway company is not complying with section 95.1, the Agency may order the railway company to undertake any changes in its railway construction or operation that the Agency considers reasonable to ensure compliance with that section.

• Marginal note:Restriction

  (2) If the Agency has published guidelines under paragraph 95.2(1)(b), it must first satisfy itself that the collaborative measures set out in the guidelines have been exhausted in respect of the noise or vibration complained of before it conducts any investigation or hearing in respect of the complaint.

Marginal note:Public passenger service providers

95.4 Sections 95.1 to 95.3 apply, with any modifications that are necessary, to public passenger service providers.

Land Transfer

Marginal note:Land taken pursuant to section 134 of Railway Act

• 96 (1) Where a railway company took possession of, used or occupied land under section 134 of the Railway Act before the coming into force of section 185, the railway company may not alienate the land except to transfer it to a railway company for the purpose of continuing railway operations or to the Crown.

• Marginal note:Alienation to other persons

  (2) The land may be transferred to any other person for the purpose of continuing railway operations if

  • (a) in the case of land in Quebec, the transfer involves only a lease or a dismemberment of the right of ownership; or

  • (b) in the case of land in any other province, the transfer does not involve a transfer of the fee simple in the land.

• Marginal note:Continuing application to subsequent transfers

  (3) If land is transferred under subsection (1) or (2) to any person other than the Crown in right of Canada, subsequent transfers of the land are subject to the same limitations as those contained in this section.

• Marginal note:Existing rights

  (4) A transfer of land under this section does not affect any right or interest of a person, other than a railway company, that existed in the land immediately before the coming into force of section 185.

Marginal note:Land obtained for railway purposes

• 97 (1) Subject to section 96, a railway company that obtained land from the Crown or any other person to assist in the construction or operation of its railway may acquire or transfer the land.

• Marginal note:Transfer of authority

  (2) If the railway company transfers the land to another company that has entered into a contract for the construction or operation, in whole or in part, of the railway for which the land was obtained, the other company has the same authority under this section as the railway company had in respect of the land.

Railway Lines

Marginal note:No construction without Agency approval

• 98 (1) A railway company shall not construct a railway line without the approval of the Agency.

• Marginal note:Grant of approval

  (2) The Agency may, on application by the railway company, grant the approval if it considers that the location of the railway line is reasonable, taking into consideration requirements for railway operations and services and the interests of the localities that will be affected by the line.

• Marginal note:Exception

  (3) No approval is needed for the construction of a railway line

  • (a) within the right of way of an existing railway line; or

  • (b) within 100 m of the centre line of an existing railway line for a distance of no more than 3 km.

Marginal note:Filing agreements

• 99 (1) An agreement, or an amendment to an agreement, relating to the construction of a railway line across another railway line may be filed with the Agency.

• Marginal note:Effect of filing

  (2) When the agreement or amendment is filed, it becomes an order of the Agency authorizing the parties to construct the railway line as provided in the agreement.

• Marginal note:No agreement

  (3) If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of the railway line or any related work.

Road and Utility Crossings

Marginal note:Definitions

100 In this section and section 101,

road crossing

road crossing means the part of a road that passes across, over or under a railway line, and includes a structure supporting or protecting that part of the road or facilitating the crossing; (franchissement routier)

utility crossing

utility crossing means the part of a utility line that passes over or under a railway line, and includes a structure supporting or protecting that part of the utility line or facilitating the crossing; (franchissement par desserte)

utility line

utility line means a wire, cable, pipeline or other like means of enabling the transmission of goods or energy or the provision of services. (desserte)

Marginal note:Filing agreements

• 101 (1) An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing or a utility crossing may be filed with the Agency.

• Marginal note:Effect of filing

  (2) When the agreement or amendment is filed, it becomes an order of the Agency authorizing the parties to construct or maintain the crossing, or apportioning the costs, as provided in the agreement.

• Marginal note:No agreement on construction or maintenance

  (3) If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing.

• Marginal note:No agreement on apportionment of costs

  (4) Section 16 of the Railway Safety Act applies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining the road crossing or utility crossing.

• Marginal note:Non-application of section

  (5) This section does not apply in any circumstances where section 102 or 103 applies.

Private Crossings

Marginal note:Divided land

102 If an owner’s land is divided as a result of the construction of a railway line, the railway company shall, at the owner’s request, construct a suitable crossing for the owner’s enjoyment of the land.

Marginal note:Other crossings may be ordered

• 103 (1) If a railway company and an owner of land adjoining the company’s railway do not agree on the construction of a crossing across the railway, the Agency, on the application of the owner, may order the company to construct a suitable crossing if the Agency considers it necessary for the owner’s enjoyment of the land.

• Marginal note:Terms and conditions

  (2) The Agency may include in its order terms and conditions governing the construction and maintenance of the crossing.

• Marginal note:Costs of construction and maintenance

  (3) The owner of the land shall pay the costs of constructing and maintaining the crossing.

DIVISION IIIFinancial Transactions of Railway Companies

Security

Marginal note:Deposit of mortgage, hypothec or security agreement

• 104 (1) The following may, in accordance with the regulations, be deposited by any person in the office of the Registrar General of Canada or in any other place that the Governor in Council may, by order, specify:

  • (a) a mortgage or hypothec issued by a railway company;

  • (b) a security agreement entered into by a railway company;

  • (c) an assignment or other document affecting a document referred to in paragraph (a) or (b); or

  • (d) a copy of any document referred to in any of paragraphs (a) to (c) or a summary of any such document made in accordance with regulations made under section 105.1.

• Marginal note:Effect of deposit

  (2) Once the deposit is made, the mortgage or hypothec, security agreement, assignment or other document need not be deposited, registered or filed under any other law or statute respecting real or personal property, and the deposited document is valid against all persons.

Documents Dealing with Rolling Stock

Marginal note:Deposit of documents

• 105 (1) A document, or a copy or summary of a document, evidencing any of the following transactions may, in accordance with the regulations, be deposited by any person in the office of the Registrar General of Canada or in any other place that the Governor in Council may, by order, specify:

  • (a) a lease, sale, conditional sale, instalment sale, mortgage, hypothec, bailment, leasing, deposit or security agreement relating to rolling stock or any accessories or appurtenances relating to rolling stock; and

  • (b) an amendment, assignment or discharge of a document mentioned in paragraph (a).

• (2) [Repealed, 2007, c. 19, s. 31]

• Marginal note:Effect of deposit

  (3) Once the deposit is made, the document need not be deposited, registered or filed under any other law or statute respecting real or personal property, and the document is valid against all persons.

• (4) [Repealed, 2007, c. 19, s. 31]

Regulations

Marginal note:Regulations

105.1 The Governor in Council may make regulations respecting

• (a) the depositing of copies of documents under sections 104 and 105;

• (b) the form and content of summaries to be deposited under those sections; and

• (c) the effects, in Canada, of the deposit, registration or filing in other countries of documents evidencing any transaction referred to in paragraph 105(1)(a) or of documents evidencing amendments, assignments or discharges of those documents.

Insolvent Railway Companies

Marginal note:Scheme may be filed in Federal Court

• 106 (1) If a railway company is insolvent, the directors may prepare a scheme of arrangement between the company and its creditors and may file it in the Federal Court.

• Marginal note:May affect shareholders and capital

  (2) The scheme may include provisions for settling and defining any rights of shareholders of the railway company as among themselves and for raising additional share and loan capital, if necessary.

• Marginal note:Documents to be filed

  (3) There must be filed with the scheme

  • (a) a declaration in writing to the effect that the railway company is unable to meet its engagements with its creditors; and

  • (b) an affidavit made by the president and directors of the company, or by a majority of them, that the declaration is true to the best of their knowledge.

• Marginal note:Federal Court may restrain action

  (4) After the scheme is filed, the Federal Court may, on the application of the railway company, restrain any action against the company on any terms that the Federal Court considers appropriate.

• Marginal note:Limitation

  (5) No order of the Federal Court or any other court restraining action against the railway company affects any right or remedy of a person in respect of, including the right to take possession of, the rolling stock, or any accessories or appurtenances relating to the rolling stock, of the company as a creditor under a security agreement, mortgage or hypothec or as a bailor, depositary, lessor or vendor under a conditional sale or an instalment sale, whether as trustee or otherwise, unless

  • (a) within 60 days after filing the scheme of arrangement, or any extended period to which the person may agree, the railway company agrees to perform all its obligations under the security agreement, mortgage, hypothec, bailment, leasing, deposit, lease, conditional sale agreement or instalment sale agreement, as the case may be;

  • (b) any event that occurred before or after the scheme was filed and that constitutes a default under the security agreement, mortgage, hypothec, bailment, leasing, deposit, lease, conditional sale agreement or instalment sale agreement, as the case may be, is cured before the later of

    • (i) 30 days after the event, and

    • (ii) the end of the period referred to in paragraph (a); and

  • (c) any event that occurred on or after the expiry of the period referred to in paragraph (a) and that constitutes a default under the security agreement, mortgage, hypothec, bailment, leasing, deposit, lease, conditional sale agreement or instalment sale agreement, as the case may be, is cured in accordance with that instrument or act.

• Marginal note:Extension of 60-day period

  (6) An extension of the 60-day period under paragraph (5)(a) does not prejudice the right to take possession of, or any other right or remedy in respect of, the rolling stock or the accessories or appurtenances relating to the rolling stock.

Marginal note:Assent to scheme

• 107 (1) The scheme is assented to when it is both assented to by the ordinary shareholders of the railway company at a special meeting called for that purpose and assented to in writing by three quarters in value of the holders of

  • (a) mortgages, hypothecs, bonds and debenture stock of the company;

  • (b) any rent charge, or other payment, charged on the receipts of or payable by the company in consideration of the purchase of the railway of another company; and

  • (c) each class of guaranteed or preferred shares of the company.

• Marginal note:Assent of lessor

  (2) If the railway company leases a railway from another company, the scheme is assented to by the other company when it is assented to

  • (a) by the ordinary shareholders of the other company at a special meeting called for that purpose; and

  • (b) in writing by three quarters in value of the holders of mortgages, hypotheques, bonds and debenture stock of the other company and each class of guaranteed or preferred shares of that company.

• Marginal note:No assent required from class not interested

  (3) Assent to the scheme is not required by a class of holders mentioned in subsection (1) or another company mentioned in subsection (2) if the scheme does not prejudicially affect any right or interest of that class or company.

Marginal note:Application for confirmation of scheme

• 108 (1) The directors of the railway company may apply to the Federal Court for confirmation of the scheme if, at any time within three months after the scheme is filed, or within any extended time that the Federal Court may allow, the directors consider the scheme to be assented to in accordance with section 107.

• (2) [Repealed, 2007, c. 19, s. 34]

• Marginal note:Confirmation of Federal Court

  (3) The Federal Court, after hearing the directors and any other persons whom it considers entitled to be heard on the application, may confirm the scheme, if it is satisfied that

  • (a) the scheme has been assented to in accordance with section 107 within the period mentioned in subsection (1); and

  • (b) no sufficient objection to the scheme has been established.

• Marginal note:Registration in Federal Court

  (4) When the scheme is confirmed, it shall be registered in the Federal Court, and from then on it is binding on the company and all persons.

• (5) [Repealed, 2007, c. 19, s. 34]

Marginal note:Rules of practice

109 The judges of the Federal Court may, with the approval of the Governor in Council, make general rules governing the practice and procedure of the Court under sections 106 to 108.

Marginal note:Copies of the scheme to be kept for sale

110 The railway company shall keep at its principal or head office printed copies of the scheme when confirmed and registered, and shall provide a copy to any person who requests one and pays a fee not exceeding the cost of making the copy.

DIVISION IVRates, Tariffs and Services

Interpretation

Marginal note:Definitions

111 In this Division,

competitive line rate

prix de ligne concurrentiel

competitive line rate means a rate determined with respect to a shipper in accordance with section 133; (prix de ligne concurrentiel)

confidential contract

contrat confidentiel

confidential contract means a contract entered into under subsection 126(1); (contrat confidentiel)

connecting carrier

transporteur de liaison

connecting carrier means a railway company, other than a local carrier, that moves traffic to or from an interchange over a portion of a continuous route in respect of which the railway company and the shipper agree on the movement of the traffic, including the applicable rate; (transporteur de liaison)

interchange

lieu de correspondance

interchange means a place where the line of one railway company connects with the line of another railway company and where loaded or empty cars may be stored until delivered or received by the other railway company; (lieu de correspondance)

interswitch

interconnexion

interswitch means to transfer traffic from the lines of one railway company to the lines of another railway company in accordance with regulations made under section 128; (interconnexion)

interswitching rate

Version anglaise seulement

interswitching rate means a rate established by, or determined in accordance with, regulations made under paragraph 128(1)(b); (Version anglaise seulement)

local carrier

transporteur local

local carrier means a railway company that moves traffic to or from an interchange on a continuous route from the point of origin or to the point of destination that is served exclusively by the railway company; (transporteur local)

service obligations

Version anglaise seulement

service obligations means obligations under section 113 or 114. (Version anglaise seulement)

Rates and Conditions of Service

Marginal note:Commercially fair and reasonable

112 A rate or condition of service established by the Agency under this Division must be commercially fair and reasonable to all parties.

Level of Services

Marginal note:Accommodation for traffic

• 113 (1) A railway company shall, according to its powers, in respect of a railway owned or operated by it,

  • (a) furnish, at the point of origin, at the point of junction of the railway with another railway, and at all points of stopping established for that purpose, adequate and suitable accommodation for the receiving and loading of all traffic offered for carriage on the railway;

  • (b) furnish adequate and suitable accommodation for the carriage, unloading and delivering of the traffic;

  • (c) without delay, and with due care and diligence, receive, carry and deliver the traffic;

  • (d) furnish and use all proper appliances, accommodation and means necessary for receiving, loading, carrying, unloading and delivering the traffic; and

  • (e) furnish any other service incidental to transportation that is customary or usual in connection with the business of a railway company.

• Marginal note:Carriage on payment of rates

  (2) Traffic must be taken, carried to and from, and delivered at the points referred to in paragraph (1)(a) on the payment of the lawfully payable rate.

• Marginal note:Compensation for provision of rolling stock

  (3) Where a shipper provides rolling stock for the carriage by the railway company of the shipper’s traffic, the company shall, at the request of the shipper, establish specific reasonable compensation to the shipper in a tariff for the provision of the rolling stock.

• Marginal note:Confidential contract between company and shipper

  (4) A shipper and a railway company may, by means of a confidential contract or other written agreement, agree on the manner in which the obligations under this section are to be fulfilled by the company.

Marginal note:Facilities for traffic

• 114 (1) A railway company shall, according to its powers, afford to all persons and other companies all adequate and suitable accommodation for receiving, carrying and delivering traffic on and from its railway, for the transfer of traffic between its railway and other railways and for the return of rolling stock.

• Marginal note:Through traffic

  (2) For the purposes of subsection (1), adequate and suitable accommodation includes reasonable facilities for the receiving, carriage and delivery by the company

  • (a) at the request of any other company, of through traffic and, in the case of goods shipped by carload, of the car with the goods shipped in it, to and from the railway of the other company, at a through rate; and

  • (b) at the request of any person interested in through traffic, of such traffic at through rates.

• Marginal note:Connecting railway to reasonable facilities

  (3) Every railway company that has or operates a railway forming part of a continuous line of railway with or that intersects any other railway, or that has any terminus, station or wharf near to any terminus, station or wharf of another railway, shall afford all reasonable facilities for delivering to that other railway, or for receiving from or carrying by its railway, all the traffic arriving by that other railway without any unreasonable delay, so that

  • (a) no obstruction is offered to the public desirous of using those railways as a continuous line of communication; and

  • (b) all reasonable accommodation, by means of the railways of those companies, is at all times afforded to the public for that purpose.

• Marginal note:Similar facilities for truckers

  (4) If a railway company provides facilities for the transportation by rail of motor vehicles or trailers operated by any company under its control for the conveyance of goods for hire or reward,

  • (a) the railway company shall offer to all companies operating motor vehicles or trailers for the conveyance of goods for hire or reward similar facilities at the same rates and on the same terms and conditions as those applicable to the motor vehicles or trailers operated by the company under its control; and

  • (b) the Agency may disallow any rate or tariff that is not in compliance with this subsection and direct the company to substitute a rate or tariff that complies with this subsection.

Marginal note:Adequate and suitable accommodation

115 For the purposes of subsection 113(1) or 114(1), adequate and suitable accommodation includes reasonable facilities

• (a) for the junction of private sidings or private spurs with a railway owned or operated by a company referred to in that subsection; and

• (b) for receiving, carrying and delivering traffic on and from private sidings or private spurs and placing cars and moving them on and from those private sidings or private spurs.

Marginal note:Complaint and investigation concerning company’s obligations

• 116 (1) On receipt of a complaint made by any person that a railway company is not fulfilling any of its service obligations, the Agency shall

  • (a) conduct, as expeditiously as possible, an investigation of the complaint that, in its opinion, is warranted; and

  • (b) within one hundred and twenty days after receipt of the complaint, determine whether the company is fulfilling that obligation.

• Marginal note:Confidential contract binding on Agency

  (2) If a company and a shipper agree, by means of a confidential contract, on the manner in which service obligations under section 113 are to be fulfilled by the company, the terms of that agreement are binding on the Agency in making its determination.

• Marginal note:Competitive line rate provisions binding on Agency

  (3) If a shipper and a company agree under subsection 136(4) on the manner in which the service obligations are to be fulfilled by the local carrier, the terms of the agreement are binding on the Agency in making its determination.

• Marginal note:Orders of Agency

  (4) If the Agency determines that a company is not fulfilling any of its service obligations, the Agency may

  • (a) order that

    • (i) specific works be constructed or carried out,

    • (ii) property be acquired,

    • (iii) cars, motive power or other equipment be allotted, distributed, used or moved as specified by the Agency, or

    • (iv) any specified steps, systems or methods be taken or followed by the company;

  • (b) specify in the order the maximum charges that may be made by the company in respect of the matter so ordered;

  • (c) order the company to fulfil that obligation in any manner and within any time or during any period that the Agency deems expedient, having regard to all proper interests, and specify the particulars of the obligation to be fulfilled;

  • (c.1) order the company to compensate any person adversely affected for any expenses that they incurred as a result of the company’s failure to fulfill its service obligations or, if the company is a party to a confidential contract with a shipper that requires the company to pay an amount of compensation for expenses incurred by the shipper as a result of the company’s failure to fulfill its service obligations, order the company to pay that amount to the shipper;

  • (d) if the service obligation is in respect of a grain-dependent branch line listed in Schedule I, order the company to add to the plan it is required to prepare under subsection 141(1) an indication that it intends to take steps to discontinue operating the line; or

  • (e) if the service obligation is in respect of a grain-dependent branch line listed in Schedule I, order the company, on the terms and conditions that the Agency considers appropriate, to grant to another railway company the right

    • (i) to run and operate its trains over and on any portion of the line, and

    • (ii) in so far as necessary to provide service to the line, to run and operate its trains over and on any portion of any other portion of the railway of the company against which the order is made but not to solicit traffic on that railway, to take possession of, use or occupy any land belonging to that company and to use the whole or any portion of that company’s right-of-way, tracks, terminals, stations or station grounds.

• Marginal note:Right of action on default

  (5) Every person aggrieved by any neglect or refusal of a company to fulfil its service obligations has, subject to this Act, an action for the neglect or refusal against the company.

• Marginal note:Company not relieved

  (6) Subject to the terms of a confidential contract referred to in subsection 113(4) or a tariff setting out a competitive line rate referred to in subsection 136(4), a company is not relieved from an action taken under subsection (5) by any notice, condition or declaration if the damage claimed in the action arises from any negligence or omission of the company or any of its employees.

Traffic of Grain

Marginal note:Definitions

116.1 The following definitions apply in this section and in section 116.2.

crop year

campagne agricole

crop year means the period that begins on August 1 in any year and ends on July 31 in the next year. (campagne agricole)

grain

grain

grain means any grain, crop or product listed in Schedule II. (grain)

move

transporter

move means to carry grain over a railway line from a point on any rail line west of Thunder Bay or Armstrong, Ontario, to any point in Canada or the United States or beyond for unloading. (transporter)

Marginal note:Obligation to move grain

• 116.2 (1) Subject to volume demand and corridor capacity, the Canadian National Railway Company and the Canadian Pacific Railway Company must each move at least 500,000 tonnes of grain during each week in the period that

  • (a) begins on the later of April 7, 2014 and the first Monday after the day on which this section comes into force; and

  • (b) ends on August 3, 2014.

• Marginal note:Order in council

  (2) The Governor in Council may, by order, on the recommendation of the Minister and the Minister of Agriculture and Agri-Food, specify the minimum amount of grain that each company referred to in subsection (1) must move during any period within a crop year that begins on or after August 1, 2014.

• Marginal note:Amount varied

  (3) The Governor in Council may, by order, on the recommendation of the Minister and the Minister of Agriculture and Agri-Food, vary the minimum amount of grain that each company referred to in subsection (1) must move during the period.

• Marginal note:Obligation

  (4) Subject to volume demand and corridor capacity, each company referred to in subsection (1) must move the minimum amount of grain that the Governor in Council specifies or varies by order.

• Marginal note:Agency’s advice

  (5) On or before the July 1 that precedes each crop year, and after consulting with the companies referred to in subsection (1) and the owners or operators of grain handling undertakings, the Agency must provide the Minister with advice on the minimum amount of grain that each company referred to in subsection (1) should move during each month of that crop year. The Agency may also consult with any other person that it considers appropriate.

• Marginal note:Initial advice

  (6) Despite subsection (5), before the first order is made under subsection (2), the Minister may, by order, set another day on or before which the Agency must provide him or her with the advice.

• Marginal note:Updated advice

  (7) On the Minister’s request and after consulting with the companies referred to in subsection (1) and the owners or operators of grain handling undertakings, the Agency must update its advice. The Agency may also consult with any other person it considers appropriate.

Marginal note:Inquiry

116.3 On the Minister’s request, the Agency must inquire into whether a company is complying with subsection 116.2(1) or (4) and must report the results of its inquiry to the Minister.

Tariffs — General

Marginal note:Rates to be charged

• 117 (1) Subject to section 126, a railway company shall not charge a rate in respect of the movement of traffic or passengers unless the rate is set out in a tariff that has been issued and published in accordance with this Division and is in effect.

• Marginal note:Tariff to include prescribed information

  (2) The tariff must include any information that the Agency may prescribe by regulation.

• Marginal note:Publication of tariff

  (3) The railway company shall publish and either publicly display the tariff or make it available for public inspection at its offices.

• Marginal note:Copy of tariff on payment of fee

  (4) The railway company shall provide a copy of the tariff, or any portion of it, to any person who requests it and pays a fee not exceeding the cost of making the copy.

• Marginal note:Record of tariff

  (5) The railway company shall keep a record of the tariff for at least three years after its cancellation.

Tariffs — Freight

Marginal note:Freight tariff requested by shipper

118 A railway company shall, at the request of a shipper, issue a tariff in respect of the movement of traffic on its railway.

Marginal note:Notice of change of tariff

• 119 (1) A railway company that proposes to increase a rate in a tariff for the movement of traffic shall publish a notice of the increase at least 30 days before its effective date.

• Marginal note:Effect of freight tariff

  (2) If a railway company issues and publishes a tariff of rates for the movement of traffic in accordance with this Division and Division VI,

  • (a) the rates are the lawful rates of the railway company and, subject to subsection (1), they take effect on the date stated in the tariff;

  • (b) the tariff supersedes any preceding tariff or any portion of it in so far as any rate in the tariff is varied; and

  • (c) a railway company that owns or operates a railway line in respect of which the tariff is issued shall charge the rates in the tariff until they expire or until the tariff is superseded by a new tariff.

Marginal note:Application to vessels

120 The provisions of this Division relating to tariffs, in so far as the Agency considers them applicable, apply to traffic carried by a railway company by water between ports or places in Canada if the company owns, charters, uses, maintains or operates vessels for carrying traffic by water between ports or places in Canada, or is a party to an arrangement for using, maintaining or operating vessels for that purpose.

Marginal note:Unreasonable charges or terms

• 120.1 (1) If, on complaint in writing to the Agency by a shipper who is subject to any charges and associated terms and conditions for the movement of traffic or for the provision of incidental services that are found in a tariff that applies to more than one shipper other than a tariff referred to in subsection 165(3), the Agency finds that the charges or associated terms and conditions are unreasonable, the Agency may, by order, establish new charges or associated terms and conditions.

• Marginal note:Period of validity

  (2) An order made under subsection (1) remains in effect for the period, not exceeding one year, specified in the order.

• Marginal note:Factors to be considered

  (3) In deciding whether any charges or associated terms and conditions are unreasonable, the Agency shall take into account the following factors:

  • (a) the objective of the charges or associated terms and conditions;

  • (b) the industry practice in setting the charges or associated terms and conditions;

  • (c) in the case of a complaint relating to the provision of any incidental service, the existence of an effective, adequate and competitive alternative to the provision of that service; and

  • (d) any other factor that the Agency considers relevant.

• Marginal note:Commercially fair and reasonable

  (4) Any charges or associated terms and conditions established by the Agency shall be commercially fair and reasonable to the shippers who are subject to them as well as to the railway company that issued the tariff containing them.

• Marginal note:Duty to vary tariff

  (5) The railway company shall, without delay after the Agency establishes any charges or associated terms and conditions, vary its tariff to reflect those charges or associated terms and conditions.

• Marginal note:No variation

  (6) The railway company shall not vary its tariff with respect to any charges or associated terms and conditions established by the Agency until the period referred to in subsection (2) has expired.

• Marginal note:Clarification

  (7) For greater certainty, this section does not apply to rates for the movement of traffic.

Joint Rates

Marginal note:Continuous route in Canada

• 121 (1) If traffic is to move over a continuous route in Canada and portions of it are operated by two or more railway companies, the companies shall, at the request of a shipper intending to move the traffic,

  • (a) agree on a joint tariff for the continuous route and on the apportionment of the rate in the joint tariff; or

  • (b) enter into a confidential contract for the continuous route.

• Marginal note:Agency may decide if no agreement

  (2) If the railway companies fail to agree or to enter into a confidential contract, the Agency, on the application of the shipper, may

  • (a) direct the companies, within any time that the Agency may specify, to agree on a joint tariff for the continuous route and an apportionment of the rate that is satisfactory to the Agency; or

  • (b) within ninety days after the application is received by the Agency,

    • (i) determine the route and the rate and apportion the rate among the companies, and

    • (ii) determine the dates, not earlier than the date of receipt by the Agency of the application, when the rate comes into effect and when it must be published.

• Marginal note:Refund to shipper

  (3) If the Agency determines a rate under paragraph (2)(b), the companies that operate the route shall pay a shipper who moved traffic over the route an amount equal to the difference, if any, between the rate that was paid by the shipper and the rate determined by the Agency, applicable to all movements of traffic by the shipper over the route from the date on which the application was made to the date on which the determined rate comes into effect.

Marginal note:Publication requirements for joint tariff or rate

• 122 (1) If a joint tariff or rate is agreed on or determined under section 121, the requirements of this Division for the publication of the tariff or rate apply only to the railway company operating the railway line on which the movement of the traffic originates.

• Marginal note:Publication of subsection 121(2) tariff or rate

  (2) A joint tariff or rate agreed on or determined under subsection 121(2) must be published without delay, or within any additional time that the Agency may specify.

Marginal note:Publication of joint tariff — from Canada to or through foreign country

123 If traffic is to move over a continuous route from a point in Canada through a foreign country into Canada, or from a point in Canada to a foreign country, and the continuous route is operated by two or more railway companies, the requirements of this Division for the publication of an applicable joint tariff apply only to the railway company operating the railway line on which the movement of the traffic originates.

Marginal note:Publication of joint tariff — from foreign country to or through Canada

124 If traffic is to move over a continuous route from a point in a foreign country into Canada, or from a foreign country through Canada into a foreign country, and the continuous route is operated by two or more companies, the requirements of this Division for the publication of an applicable joint tariff apply only to the railway company operating the railway line on which the traffic is first moved in Canada.

Marginal note:Continuous carriage not to be prevented

• 125 (1) No railway company shall, by any combination, contract or agreement, express or implied, or by any other means, prevent traffic from being moved on a continuous route from the point of origin to the point of destination.

• Marginal note:Break in bulk, etc.

  (2) A break in bulk, stop or interruption made by a railway company does not prevent the movement of traffic from being treated, for the purposes of sections 121 to 124, as one continuous movement from the point of origin to the point of destination, if the break, stop or interruption was made in good faith for a necessary purpose and without intent to avoid or unnecessarily interrupt the continuous movement or to evade the provisions of this Division.

• Marginal note:Agency may require information

  (3) The Agency may direct a railway company operating on a continuous route to inform the Agency of the proportion of the rates that the railway company, or any other company operating on the continuous route, is to receive or has received under a joint tariff or confidential contract applicable to the route.

Confidential Contracts

Marginal note:Confidential contracts

• 126 (1) A railway company may enter into a contract with a shipper that the parties agree to keep confidential respecting

  • (a) the rates to be charged by the company to the shipper;

  • (b) reductions or allowances pertaining to rates in tariffs that have been issued and published in accordance with this Division;

  • (c) rebates or allowances pertaining to rates in tariffs or confidential contracts that have previously been lawfully charged;

  • (d) any conditions relating to the traffic to be moved by the company; and

  • (e) the manner in which the company shall fulfill its service obligations under section 113.

• Marginal note:Request for confidential contract

  (1.1) If a shipper wishes to enter into a contract under subsection (1) with a railway company respecting the manner in which the railway company must fulfil its service obligations under section 113, the shipper may request that the railway company make it an offer to enter into such a contract.

• Marginal note:Content of request

  (1.2) The request must describe the traffic to which it relates, the services requested by the shipper with respect to the traffic and any undertaking that the shipper is prepared to give to the railway company with respect to the traffic or services.

• Marginal note:Offer

  (1.3) The railway company must make its offer within 30 days after the day on which it receives the request.

• Marginal note:Exception to offer

  (1.4) Subject to subsection (1.5), the railway company is not required to include in its offer terms with respect to a matter that

  • (a) is governed by a written agreement to which the shipper and the railway company are parties;

  • (b) is the subject of an order, other than an interim order, made under subsection 116(4);

  • (c) is set out in a tariff referred to in subsection 136(4) or 165(3); or

  • (d) is the subject of an arbitration decision made under section 169.37.

• Marginal note:Clarification

  (1.5) The railway company must include in its offer terms with respect to a matter that is governed by an agreement, the subject of an order or decision or set out in a tariff, referred to in subsection (1.4) if the agreement, order, decision or tariff expires within two months after the day on which the railway company receives the request referred to in subsection (1.1). The terms must apply to a period that begins after the agreement, order, decision or tariff expires.

• Marginal note:No investigation or arbitration of confidential contracts

  (2) No party to a confidential contract is entitled to submit a matter governed by the contract to the Agency for final offer arbitration under section 161, without the consent of all the parties to the contract.

Interswitching

Marginal note:Application to interswitch traffic between connecting lines

• 127 (1) If a railway line of one railway company connects with a railway line of another railway company, an application for an interswitching order may be made to the Agency by either company, by a municipal government or by any other interested person.

• Marginal note:Order

  (2) The Agency may order the railway companies to provide reasonable facilities for the convenient interswitching of traffic in both directions at an interchange between the lines of either railway and those of other railway companies connecting with them.

• Marginal note:Interswitching limits

  (3) If the point of origin or destination of a continuous movement of traffic is within a radius of 30 km, or a prescribed greater distance, of an interchange, a railway company shall not transfer the traffic at the interchange except in accordance with the regulations.

• Marginal note:Extension of interswitching limits

  (4) On the application of a person referred to in subsection (1), the Agency may deem a point of origin or destination of a movement of traffic in any particular case to be within 30 km, or a prescribed greater distance, of an interchange, if the Agency is of the opinion that, in the circumstances, the point of origin or destination is reasonably close to the interchange.

Marginal note:Regulations

• 128 (1) The Agency may make regulations

  • (a) prescribing terms and conditions governing the interswitching of traffic, other than terms and conditions relating to safety;

  • (b) determining the rate per car to be charged for interswitching traffic, or prescribing the manner of determining that rate, including the adjustments to be made to that rate as a result of changes in costs, and establishing distance zones for those purposes; and

  • (c) prescribing, for the purposes of subsections 127(3) and (4), a greater distance than 30 km from an interchange.

• Marginal note:Different distances

  (1.1) A regulation made under paragraph (1)(c) may prescribe different distances for the regions or goods that it specifies.

• Marginal note:Cost savings to be considered

  (2) In determining an interswitching rate, the Agency shall take into consideration any reduction in costs that, in the opinion of the Agency, results from moving a greater number of cars or from transferring several cars at the same time.

• Marginal note:Limit on rate

  (3) In determining an interswitching rate, the Agency shall consider the average variable costs of all movements of traffic that are subject to the rate and the rate must not be less than the variable costs of moving the traffic, as determined by the Agency.

• Marginal note:Transfer of lines does not affect entitlement

  (4) For greater certainty, the transfer of a railway line, or an operating interest in it, under Division V or section 158 of the National Transportation Act, 1987 does not affect any entitlement to an interswitching rate.

• Marginal note:Review of interswitching regulations

  (5) The Agency shall review the regulations when the circumstances warrant and at least once in every five year period after the regulations are made.

Competitive Line Rates

Marginal note:Application

• 129 (1) Sections 130 to 136 apply where

  • (a) a shipper has access to the lines of only one railway company at the point of origin or destination of the movement of the shipper’s traffic; and

  • (b) a continuous route between those points is operated by two or more companies.

• Marginal note:Transferred railway lines

  (2) For greater certainty, the transfer of a railway line, or an operating interest in it, under Division V or section 158 of the National Transportation Act, 1987 does not affect the right of a shipper to obtain a competitive line rate under sections 130 to 136.

Marginal note:When competitive line rate to be established on shipper’s request

• 130 (1) Subject to section 131, the local carrier serving the shipper at the point of origin or destination, as the case may be, shall, on the request of the shipper, establish a competitive line rate applicable to the movement of the traffic between the point of origin or destination, whichever is served exclusively by the local carrier, and the nearest interchange with a connecting carrier.

• Marginal note:Requirement unaffected by extent of carrier’s capability

  (2) The local carrier shall establish the competitive line rate even if it is able to move the traffic over the whole of the continuous route or a portion of that route that is longer than the portion in respect of which the competitive line rate is to apply.

• Marginal note:Designation of route by shipper

  (3) The shipper may designate the continuous route for the movement of the shipper’s traffic from the point of origin to the point of destination.

• Marginal note:Route within Canada

  (4) If the ultimate point of destination of a movement of the shipper’s traffic is in Canada, the shipper shall designate a route wholly within Canada, unless there is no cost-effective continuous route wholly within Canada that is available to the shipper and over which it is reasonable to move the shipper’s traffic.

• Marginal note:Export and import

  (5) For the purposes of this section,

  • (a) if the point of destination of a movement of traffic is a port in Canada for export out of Canada, that port is the ultimate point of destination in Canada; and

  • (b) if the point of origin of a movement of traffic is a port in Canada for import into Canada, that port is the point of origin.

• Marginal note:Nearest interchange

  (6) For the purposes of subsection (1), the nearest interchange is the one nearest the point of origin or destination, whichever is served exclusively by the local carrier, in the reasonable direction of the movement of the traffic from the point of origin to the point of destination on the continuous route designated by the shipper, unless the local carrier can demonstrate that the interchange cannot be used for engineering reasons.

Marginal note:Shipper and connecting carriers must agree

• 131 (1) A competitive line rate must not be established unless the shipper agrees with the connecting carrier, and with any other company, other than the local carrier, that moves traffic over a portion of the continuous route, on the terms and conditions governing their movement of the traffic, including the applicable rate.

• Marginal note:No other rate applies

  (2) If an interswitching rate determined under paragraph 128(1)(b) is available for a portion of the route operated by the local carrier, no other rate may be applied to that portion of the route.

• Marginal note:Movement on flat cars or less than carload traffic

  (3) A competitive line rate must not be established for the movement of trailers on flat cars, containers on flat cars or less than carload traffic, unless they arrive at a port in Canada by water for movement by rail or by rail for movement by water.

• Marginal note:Maximum portion of traffic

  (4) The portion of a movement of traffic in respect of which a competitive line rate may be established must not exceed 50 per cent of the total number of kilometres over which the traffic is moved by rail or 1 200 km, whichever is greater.

• Marginal note:Exception

  (5) On application of a shipper, the Agency may establish a competitive line rate for a greater portion of a movement of traffic if the Agency is satisfied that no interchange exists within the maximum portion referred to in subsection (4).

• Marginal note:No other rates may be established

  (6) If a competitive line rate has been established for a movement of traffic of a shipper, no other competitive line rate may be established in respect of that movement while the rate is in effect.

Marginal note:Application to Agency to establish competitive line rates

• 132 (1) On the application of a shipper, the Agency shall, within forty-five days after receiving the application, establish any of the following matters in respect of which the shipper and the local carrier do not agree:

  • (a) the amount of the competitive line rate;

  • (b) the designation of the continuous route;

  • (c) the designation of the nearest interchange; and

  • (d) the manner in which the local carrier shall fulfil its service obligations.

• Marginal note:No final offer arbitration

  (2) If a matter is established by the Agency under this section, the shipper is not entitled to submit the matter to the Agency for final offer arbitration under section 161.

Marginal note:Competitive line rate

• 133 (1) A competitive line rate in respect of the movement of traffic of a shipper is the result obtained by applying the following formula:

  A + (B/C × (D - E))

  where

  A

  is the amount resulting from the application of the interswitching rate;

  B

  is the total revenue that the local carrier received in respect of all movement over its lines of railway

  • (a) of traffic that

    • (i) is the same as or substantially similar to, the traffic moved, and

    • (ii) is moved over similar distances, unless no such traffic is moved over similar distances; and

  • (b) during the most recent period designated by the local carrier or any other period determined by the Agency, if the Agency determines that the designated period is not appropriate in the circumstances;

  C

  is the total number of tonne kilometres of the movement of traffic that generated the total revenue;

  D

  is the number of kilometres over which the competitive line rate is to apply; and

  E

  is the total number of kilometres to which the interswitching rate is applicable.

• Marginal note:Adjustment of rate

  (2) If a shipper performs any of the activities in respect of which an interswitching rate is applicable, the applicable interswitching rate in the description of A in the formula must be adjusted to account for the performance of those activities.

• Marginal note:Alternative determination

  (3) The Agency may make an order in respect of a particular shipper or railway company, or make regulations that apply generally to shippers or railway companies, establishing an alternative method of determining the amount of a competitive line rate if the amount cannot be determined in accordance with this section.

• Marginal note:Rate must be compensatory

  (4) A competitive line rate determined under this section must not be less than the variable costs of moving the traffic, as determined by the Agency.

Marginal note:Rate to be included in tariff or confidential contract

134 A competitive line rate must be set out in a tariff or confidential contract.

Marginal note:Effective period of rate

135 If a competitive line rate is established by the Agency, it has effect for one year after its effective date, or for any other period that the shipper and the local carrier agree on.

Marginal note:Obligation of carriers to provide cars

• 136 (1) If a competitive line rate is established, a railway company, other than the local carrier, shall provide the shipper with an adequate supply of cars for the traffic being moved.

• Marginal note:Additional obligations

  (2) Subject to any agreement to the contrary between the local carrier and any connecting carrier concerned, the connecting carrier is responsible for

  • (a) a prorated share, determined in accordance with subsection (3), of the costs of operating and maintaining the interchange during the period in respect of which the competitive line rate is in effect; and

  • (b) the capital cost of making any change or addition to the interchange that may be necessary for transferring the traffic for which the competitive line rate is established.

• Marginal note:Determination of prorated share

  (3) The prorated share is the proportion that

  • (a) the competitive line rate traffic transferred at the interchange during the period

  is of

  • (b) the total traffic transferred at the interchange during the period.

• Marginal note:Tariff to set out service obligations

  (4) The tariff setting out a competitive line rate must set out the manner in which the local carrier issuing the tariff shall, subject to subsection (1), fulfil its service obligations

  • (a) as agreed on by the shipper and the local carrier, if they agree on the amount of the competitive line rate; or

  • (b) as determined by the Agency, if the amount of the competitive line rate is established by the Agency under section 132.

Means to Deal with Carriers’ Liability

Marginal note:Agreement

• 137 (1) The railway company’s liability, including to a third party, in respect of the movement of a shipper’s traffic shall be dealt with between the company and the shipper only by means of a written agreement that is signed by the shipper or by an association or other body representing shippers.

• Marginal note:No agreement

  (2) If there is no agreement, the railway company’s liability to the shipper in respect of a loss of or damage to a shipper’s traffic in the company’s possession or for any delay in its movement shall be dealt with between the company and the shipper,

  • (a) on the application of the company, by the Agency; or

  • (b) if there is no application or, if there is an application but the Agency does not specify any terms or conditions with respect to the matter, in the manner set out in the regulations.

• Marginal note:Regulations

  (3) For the purposes of paragraph (2)(b), the Agency may make regulations respecting the manner in which a railway company’s liability under subsection (2) is to be dealt with between a company and a shipper.

Running Rights and Joint Track Usage

Marginal note:Application by railway company

• 138 (1) A railway company may apply to the Agency for the right to

  • (a) take possession of, use or occupy any land belonging to any other railway company;

  • (b) use the whole or any portion of the right-of-way, tracks, terminals, stations or station grounds of any other railway company; and

  • (c) run and operate its trains over and on any portion of the railway of any other railway company.

• Marginal note:Application may be granted

  (2) The Agency may grant the right and may make any order and impose any conditions on either railway company respecting the exercise or restriction of the rights as appear just or desirable to the Agency, having regard to the public interest.

• Marginal note:Compensation

  (3) The railway company shall pay compensation to the other railway company for the right granted and, if they do not agree on the compensation, the Agency may, by order, fix the amount to be paid.

Marginal note:Request for joint or common use of right-of-way

• 139 (1) The Governor in Council may

  • (a) on the application of a railway company, a municipal government or any other interested person, or on the Governor in Council’s own initiative, and

  • (b) after any investigation that the Governor in Council considers necessary,

  request two or more railway companies to consider the joint or common use of a right-of-way if the Governor in Council is of the opinion that its joint or common use may improve the efficiency and effectiveness of rail transport and would not unduly impair the commercial interests of the companies.

• Marginal note:Order in Council for joint or common use of right-of-way

  (2) If the Governor in Council is satisfied that significant efficiencies and cost savings would result from joint or common use of the right-of-way by two or more railway companies and would not unduly impair the commercial interests of the companies, the Governor in Council may make any order for the joint or common use of the right-of-way that the Governor in Council considers necessary.

• Marginal note:Compensation

  (3) The Governor in Council may also, by order, fix the amount of compensation to be paid in respect of the joint or common use of the right-of-way and any related work if the companies do not agree on the amount of that compensation.

DIVISION VTransferring and Discontinuing the Operation of Railway Lines

Definition of railway line

• 140 (1) In this Division, railway line includes a portion of a railway line, but does not include

  • (a) a yard track, siding or spur; or

  • (b) other track auxiliary to a railway line.

• Marginal note:Determination

  (2) The Agency may determine as a question of fact what constitutes a yard track, siding, spur or other track auxiliary to a railway line.

Marginal note:Three-year plan

• 141 (1) A railway company shall prepare and keep up to date a plan indicating for each of its railway lines whether it intends to continue to operate the line or whether, within the next three years, it intends to take steps to discontinue operating the line.

• Marginal note:Public availability of plan

  (2) The railway company shall make the plan available for public inspection in offices of the company that it designates for that purpose.

• Marginal note:Notification of changes

  (2.1) Whenever the railway company makes a change to the plan, it shall notify the following of the change within 10 days after the change:

  • (a) the Minister;

  • (b) the Agency;

  • (c) the minister responsible for transportation matters in the government of each province through which the railway line passes;

  • (d) the chairperson of every urban transit authority through whose territory the railway line passes; and

  • (e) the clerk or other senior administrative officer of every municipal or district government through which the railway line passes.

• Marginal note:When sale, etc., permitted

  (3) Subject to section 144.1, a railway company may sell, lease or otherwise transfer its railway lines, or its operating interest in its lines, for continued operation.

• Marginal note:Continued operation of a portion of a line

  (4) A railway company that sells, leases or otherwise transfers a portion of a grain-dependent branch line listed in Schedule I, or its operating interest in such a portion, to a person who intends to operate the portion shall continue to operate the remaining portion for three years, unless the Minister determines that it is not in the public interest for the company to do so.

Marginal note:Compliance with steps for discontinuance

• 142 (1) A railway company shall comply with the steps described in this Division before discontinuing operating a railway line.

• Marginal note:Limitation

  (2) A railway company shall not take steps to discontinue operating a railway line before the company’s intention to discontinue operating the line has been indicated in its plan for at least 12 months.

• Marginal note:Community-based groups

  (3) Subsection (2) does not apply and a railway company shall without delay take the steps described in section 143 if

  • (a) the federal government, a provincial, municipal or district government or a community-based group endorsed in writing by such a government has written to the company to express an interest in acquiring all or a portion of a grain-dependent branch line that is listed in Schedule I for the purpose of continuing to operate that line or portion of a line; and

  • (b) that line or portion of a line is indicated on the company’s plan as being a line or a portion of a line that the company intends to take steps to discontinue operating.

Marginal note:Advertisement of availability of railway line for continued rail operations

• 143 (1) The railway company shall advertise the availability of the railway line, or any operating interest that the company has in it, for sale, lease or other transfer for continued operation and its intention to discontinue operating the line if it is not transferred.

• Marginal note:Content of advertisement

  (2) The advertisement must include a description of the railway line and how it or the operating interest is to be transferred, whether by sale, lease or otherwise, and an outline of the steps that must be taken before the operation of the line may be discontinued, including

  • (a) a statement that the advertisement is directed to persons interested in buying, leasing or otherwise acquiring the railway line, or the railway company’s operating interest in it, for the purpose of continuing railway operations; and

  • (b) the date by which interested persons must make their interest known in writing to the company, but that date must be at least sixty days after the first publication of the advertisement.

• Marginal note:Disclosure of agreement with public passenger service provider

  (3) The advertisement must also disclose the existence of any agreement between the railway company and a public passenger service provider in respect of the operation of a passenger rail service on the railway line.

• (4) [Repealed, 2007, c. 19, s. 36]

Marginal note:Disclosure of process

• 144 (1) The railway company shall disclose the process it intends to follow for receiving and evaluating offers to each interested person who makes their interest known in accordance with the advertisement.

• (2) [Repealed, 2007, c. 19, s. 37]

• Marginal note:Negotiation in good faith

  (3) The railway company shall negotiate with an interested person in good faith and in accordance with the process it discloses and the interested person shall negotiate with the company in good faith.

• Marginal note:Net salvage value

  (3.1) The Agency may, on application by a party to a negotiation, determine the net salvage value of the railway line and may, if it is of the opinion that the railway company has removed any of the infrastructure associated with the line in order to reduce traffic on the line, deduct from the net salvage value the amount that the Agency determines is the cost of replacing the removed infrastructure. The party who made the application shall reimburse the Agency its costs associated with the application.

• Marginal note:Time limit for agreement

  (4) The railway company has six months to reach an agreement after the final date stated in the advertisement for persons to make their interest known.

• Marginal note:Decision to continue operating a railway line

  (5) If an agreement is not reached within the six months, the railway company may decide to continue operating the railway line, in which case it is not required to comply with section 145, but shall amend its plan to reflect its decision.

• Marginal note:Remedy if bad faith by a railway company

  (6) If, on complaint in writing by the interested person, the Agency finds that the railway company is not negotiating in good faith and the Agency considers that a sale, lease or other transfer of the railway line, or the company’s operating interest in the line, to the interested person for continued operation would be commercially fair and reasonable to the parties, the Agency may order the railway company to enter into an agreement with the interested person to effect the transfer and with respect to operating arrangements for the interchange of traffic, subject to the terms and conditions, including consideration, specified by the Agency.

• Marginal note:Remedy if bad faith by an interested person

  (7) If, on complaint in writing by the railway company, the Agency finds that the interested person is not negotiating in good faith, the Agency may order that the railway company is no longer required to negotiate with the person.

Marginal note:Rights and obligations under passenger service agreements continued

• 144.1 (1) If a railway line, or a railway company’s operating interest in a railway line, is sold, leased or otherwise transferred under subsection 141(3) or as the result of an advertisement under subsection 143(1) and, before the day such advertisement was made, an agreement was in force between the railway company and a public passenger service provider in respect of the operation of a passenger rail service on the railway line, the rights and obligations of the railway company under the agreement in respect of the operation of that service on that line vest, as of the day the transfer takes place, in the person or entity to which the railway line, or the operating interest, is transferred, unless the public passenger service provider indicates otherwise before that day.

• Marginal note:Declaration that line is for general advantage of Canada

  (2) Whenever a railway company’s rights and obligations under an agreement with VIA Rail Canada Inc. are vested in another person or entity by subsection (1), the portion of the railway line to which the agreement relates is hereby declared, as of the day the transfer takes place, to be a work for the general advantage of Canada.

• Marginal note:Duration of declaration

  (3) The declaration referred to in subsection (2) ceases to have effect if

  • (a) VIA Rail Canada Inc. ceases to operate a passenger rail service on the portion of railway line to which the declaration relates; or

  • (b) the operation of the railway line is discontinued.

Marginal note:Offer to governments

• 145 (1) The railway company shall offer to transfer all of its interest in the railway line to the governments and urban transit authorities mentioned in this section for not more than its net salvage value to be used for any purpose if

  • (a) no person makes their interest known to the railway company, or no agreement with an interested person is reached, within the required time; or

  • (b) an agreement is reached within the required time, but the transfer is not completed in accordance with the agreement.

• Marginal note:Which governments receive offer

  (2) After the requirement to make the offer arises, the railway company shall send it simultaneously

  • (a) to the Minister if the railway line passes through

    • (i) more than one province or outside Canada,

    • (ii) land that is or was a reserve, as defined in subsection 2(1) of the Indian Act,

    • (iii) land that is the subject of an agreement entered into by the railway company and the Minister for the settlement of aboriginal land claims, or

    • (iv) a metropolitan area;

  • (b) to the minister responsible for transportation matters in the government of each province through which the railway line passes;

  • (c) to the chairperson of every urban transit authority through whose territory the railway line passes; and

  • (d) to the clerk or other senior administrative officer of every municipal or district government through whose territory the railway line passes.

• Marginal note:Time limits for acceptance

  (3) Subject to subsection 146.3(3), after the offer is received

  • (a) by the Minister, the Government of Canada may accept it within thirty days;

  • (b) by a provincial minister, the government of the province may accept it within thirty days, unless the offer is received by the Minister, in which case the government of each province may accept it within an additional thirty days after the end of the period mentioned in paragraph (a) if it is not accepted under that paragraph;

  • (b.1) by an urban transit authority, it may accept it within an additional 30 days after the end of the period or periods for acceptance under paragraphs (a) and (b), if it is not accepted under those paragraphs; and

  • (c) by a municipal or district government, it may accept it within an additional 30 days after the end of the period or periods for acceptance under paragraphs (a), (b) and (b.1), if it is not accepted under those paragraphs.

• Marginal note:Communication and notice of acceptance

  (4) Once a government or an urban transit authority communicates its written acceptance of the offer to the railway company, the right of any other government or urban transit authority to accept the offer is extinguished, and the railway company must notify the other governments and urban transit authorities of the acceptance.

• Marginal note:Net salvage value

  (5) If a government or an urban transit authority accepts the offer, but cannot agree with the railway company on the net salvage value within 90 days after the acceptance, the Agency may, on the application of the government or urban transit authority or the railway company, determine the net salvage value.

Marginal note:Discontinuation

• 146 (1) If a railway company has complied with the process set out in sections 143 to 145, but an agreement for the sale, lease or other transfer of the railway line or an interest in it is not entered into through that process, the railway company may discontinue operating the line on providing notice of the discontinuance to the Agency. After providing the notice, the railway company has no obligations under this Act in respect of the operation of the railway line and has no obligations with respect to any operations by any public passenger service provider over the railway line.

• Marginal note:No obligation

  (2) If the railway line, or any interest of the railway company in it, is sold, leased or otherwise transferred by an agreement entered into through the process set out in sections 143 to 145 or otherwise, the railway company that conveyed the railway line has no obligations under this Act in respect of the operation of the railway line as and from the date the sale, lease or other transfer was completed and has no obligations with respect to any operations by any public passenger service provider over the railway line as and from that date.

Marginal note:Obligation following return

• 146.01 (1) If, by reason of the instrument or act by which a railway line or an operating interest in a railway line is transferred through the process set out in sections 143 to 145 or otherwise, the railway line or operating interest in the railway line returns to the railway company that transferred it, the railway company shall, within 60 days after the day on which the return takes place, resume operations of the line or follow the process set out in sections 143 to 145.

• Marginal note:No condition or obligation

  (2) If a railway line or operating interest in a railway line returns to a railway company that transferred it and the company decides to follow the process set out in sections 143 to 145 in respect of the railway line or operating interest, the company is not subject to subsection 142(2) in respect of the railway line or operating interest and has no obligations under this Act in respect of the operation of the railway line.

Marginal note:Exception

146.02 Despite section 146.01, if a railway line or operating interest in a railway line returns to a railway company referred to in that section and, before the day on which the return takes place, an agreement was in force between the person or entity that owned the railway line or had the operating interest in the railway line immediately before the return and a public passenger service provider as defined in section 87 in respect of the operation of a passenger rail service on that railway line, then, unless the public passenger service provider indicates otherwise before that day, the rights and obligations of the person or entity under the agreement in respect of the operation of that service on that line vest, as of that day, in the railway company and the railway company shall resume operations of the railway line.

Marginal note:Compensation

• 146.1 (1) A railway company that discontinues operating a grain-dependent branch line listed in Schedule I, or a portion of one, that is in a municipality or district shall, commencing on the date on which notice was provided under subsection 146(1), make three annual payments to the municipality or district in the amount equal to $10,000 for each mile of the line or portion in the municipality or district.

• Marginal note:Compensation

  (2) If a railway company to which subsection 146.01(1) applies does not resume operations on a grain-dependent branch line listed in Schedule I within the period provided for in that subsection and does not enter into an agreement for the sale, lease or other transfer of that railway line, or applicable interest in that railway line, after following the process set out in sections 143 to 145, the railway company shall, beginning on the day after the last day on which its offer could have been accepted under section 145, make the annual payments referred to in subsection (1).

Marginal note:List of metropolitan sidings and spurs to be dismantled

• 146.2 (1) A railway company shall prepare and keep up to date a list of its sidings and spurs that it plans to dismantle and that are located in metropolitan areas or within the territory served by any urban transit authority, except for sidings and spurs located on a railway right-of-way that will continue to be used for railway operations subsequent to their dismantlement.

• Marginal note:Publication of list and notification of changes

  (2) The railway company shall publish the list on its Internet site and, whenever it makes a change to the list, it shall notify the following of the change within 10 days after the change:

  • (a) the Minister;

  • (b) the Agency;

  • (c) the minister responsible for transportation matters in the government of the province in which the siding or spur that is the subject of the change is located;

  • (d) the chairperson of the urban transit authority in whose territory the siding or spur that is the subject of the change is located; and

  • (e) the clerk or other senior administrative officer of the municipal or district government in which the siding or spur that is the subject of the change is located.

• Marginal note:Limitation

  (3) A railway company shall not take steps to dismantle a siding or a spur until at least 12 months have elapsed since the siding or spur was added to the list.

• Marginal note:Offer to governments

  (4) Before dismantling a siding or a spur that has been on the list for at least 12 months, a railway company shall send simultaneously to each of the following an offer to transfer all of its interest in the siding or spur for not more than its net salvage value:

  • (a) the Minister;

  • (b) the minister responsible for transportation matters in the government of the province in which the siding or spur is located;

  • (c) the chairperson of the urban transit authority in whose territory the siding or spur is located; and

  • (d) the clerk or other senior administrative officer of the municipal or district government in which the siding or spur is located.

• Marginal note:Time limits for acceptance

  (5) Subject to subsection 146.3(3), after the offer is received

  • (a) by the Minister, the Government of Canada may accept it within 30 days;

  • (b) by the provincial minister, the government of the province may accept it within an additional 30 days after the end of the period mentioned in paragraph (a) if it is not accepted under that paragraph;

  • (c) by the chairperson of an urban transit authority, that authority may accept it within an additional 30 days after the end of the periods for acceptance under paragraphs (a) and (b), if it is not accepted under those paragraphs; and

  • (d) by the clerk or other senior administrative officer of a municipal or district government, that government may accept it within an additional 30 days after the end of the periods for acceptance under paragraphs (a), (b) and (c), if it is not accepted under those paragraphs.

• Marginal note:Communication and notice of acceptance

  (6) Once a government or an urban transit authority communicates its written acceptance of the offer to the railway company, the right of any other government or urban transit authority to accept the offer is extinguished, and the railway company shall notify the other governments and urban transit authorities of the acceptance.

• Marginal note:Net salvage value

  (7) If a government or an urban transit authority accepts the offer, but cannot agree with the railway company on the net salvage value within 90 days after the acceptance, the Agency may, on the application of the government, the urban transit authority or the railway company, determine the net salvage value.

• Marginal note:Dismantling permitted

  (8) If the offer is not accepted, the railway company may dismantle the siding or spur on providing notice to the Agency.

Marginal note:Determination of net salvage value before expiry of time to accept offer

• 146.3 (1) A person to whom a railway line is offered under section 145, or to whom a siding or spur is offered under section 146.2, may apply to the Agency for a determination of the net salvage value of the railway line, siding or spur, as the case may be, at any time before the expiry of the period available to the person to accept the offer.

• Marginal note:Notification of application

  (2) The applicant shall without delay provide a copy of the application to the railway company, and the railway company shall without delay notify every other person to whom the offer was made and whose time to accept the offer has not expired that an application for a determination of the net salvage value was made.

• Marginal note:Effect of application

  (3) If an application is made under subsection (1), the time available to the applicant to accept the offer expires on the day that is 30 days after the day the Agency notifies the applicant of its determination of the net salvage value and the 30-day period for each other person to accept the offer is calculated on the expiry of the period available to the applicant to accept the offer.

• Marginal note:Costs

  (4) The applicant shall reimburse the Agency’s costs associated with the application.

Marginal note:Railway rights of way

146.4 Sections 146.2 and 146.3 apply, with any modifications that are necessary, to railway rights-of-way, that are located in metropolitan areas or within the territory served by any urban transit authority and in respect of which the sidings and spurs have been dismantled, that a railway company plans to sell, lease or otherwise transfer.

Marginal note:Passenger railway stations

146.5 Sections 146.2 and 146.3 apply, with any modifications that are necessary, to passenger railway stations in Canada that a railway company plans to sell, lease or otherwise transfer or dismantle.

DIVISION VITransportation of Western Grain

Interpretation

Marginal note:Definitions

147 In this Division,

crop year

campagne agricole

crop year means the period beginning on August 1 in any year and ending on July 31 in the next year; (campagne agricole)

export

exportation

export, in respect of grain, means shipment by a vessel, as defined in section 2 of the Canada Shipping Act, 2001 , to any destination outside Canada and shipment by any other mode of transport to the United States for use of the grain in that country and not for shipment out of that country; (exportation)

government hopper car

wagon-trémie du gouvernement

government hopper car means a hopper car provided to a prescribed railway company by the government of Canada or a province; (wagon-trémie du gouvernement)

grain

grain

grain means

• (a) any grain or crop included in Schedule II that is grown in the Western Division, or any product of it included in Schedule II that is processed in the Western Division, or

• (b) any grain or crop included in Schedule II that is grown outside Canada and imported into Canada, or any product of any grain or crop included in Schedule II that is itself included in Schedule II and is processed outside Canada and imported into Canada; (grain)

joint line movement

joint line movement[Repealed, 2000, c. 16, s. 9]

maximum rate scale

maximum rate scale[Repealed, 2000, c. 16, s. 9]

movement

mouvement du grain

movement, in respect of grain, means the carriage of grain by a prescribed railway company over a railway line from a point on any line west of Thunder Bay or Armstrong, Ontario, to

• (a) Thunder Bay or Armstrong, Ontario, or

• (b) Churchill, Manitoba, or a port in British Columbia for export,

but does not include the carriage of grain to a port in British Columbia for export to the United States for consumption in that country; (mouvement du grain)

port in British Columbia

port de la Colombie-Britannique

port in British Columbia means Vancouver, North Vancouver, New Westminster, Roberts Bank, Prince Rupert, Ridley Island, Burnaby, Fraser Mills, Fraser Surrey, Fraser Wharves, Lake City, Lulu Island Junction, Port Coquitlam, Port Moody, Steveston, Tilbury and Woodwards Landing; (port de la Colombie-Britannique)

prescribed railway company

compagnie de chemin de fer régie

prescribed railway company means the Canadian National Railway Company, the Canadian Pacific Railway Company and any railway company that may be specified in the regulations; (compagnie de chemin de fer régie)

Western Division

région de l’Ouest

Western Division means the part of Canada lying west of the meridian passing through the eastern boundary of the City of Thunder Bay, including the whole of the Province of Manitoba. (région de l’Ouest)

Application of Division IV

Marginal note:Application to tariffs and rates

148 The provisions of Division IV apply, with such modifications as the circumstances require, to tariffs and rates under this Division to the extent that those provisions are not inconsistent with this Division.

Tariffs

Marginal note:Issuance and publication

• 149 (1) A prescribed railway company shall issue and publish tariffs that include single car rates in respect of the movement of grain from each grain delivery point on its railway.

• Marginal note:Prohibition

  (2) No prescribed railway company shall establish a single car rate in a tariff in respect of the movement of grain from a grain delivery point on one of its branch lines that is more than three per cent higher than any single car rate in its tariffs for the movement of the same type of grain under substantially similar conditions for a substantially similar distance from the grain delivery point on one of its main lines that is nearest, as measured in a straight line, to the grain delivery point on the branch line.

Maximum Grain Revenue Entitlement

Marginal note:Ceiling

• 150 (1) A prescribed railway company’s revenues, as determined by the Agency, for the movement of grain in a crop year may not exceed the company’s maximum revenue entitlement for that year as determined under subsection 151(1).

• Marginal note:Payment of excess and penalty

  (2) If a prescribed railway company’s revenues, as determined by the Agency, for the movement of grain in a crop year exceed the company’s maximum revenue entitlement for that year as determined under subsection 151(1), the company shall pay out the excess amount, and any penalty that may be specified in the regulations, in accordance with the regulations.

• Marginal note:Items not included in revenue

  (3) For the purposes of this section, a prescribed railway company’s revenue for the movement of grain in a crop year shall not include

  • (a) incentives, rebates or any similar reductions paid or allowed by the company;

  • (b) any amount that is earned by the company and that the Agency determines is reasonable to characterize as a performance penalty or as being in respect of demurrage or for the storage of railway cars loaded with grain; or

  • (c) compensation for running rights.

• Marginal note:Impermissible reductions

  (4) For the purposes of this section, a prescribed railway company’s revenue for the movement of grain in a crop year shall not be reduced by amounts paid or allowed as dispatch by the company for loading or unloading grain before the expiry of the period agreed on for loading or unloading the grain.

• Marginal note:Reductions from revenue

  (5) For the purposes of this section, if the Agency determines that it was reasonable for a prescribed railway company to make a contribution for the development of grain-related facilities to a grain handling undertaking that is not owned by the company, the company’s revenue for the movement of grain in a crop year shall be reduced by any amount that the Agency determines constitutes the amortized amount of the contribution by the company in the crop year.

• Marginal note:Agency to determine revenue

  (6) The Agency shall make the determination of a prescribed railway company’s revenues for the movement of grain in a crop year on or before December 31 of the following crop year.

150.1 to 150.4 [Repealed, 2000, c. 16, s. 10]

Marginal note:Maximum revenue entitlement

• 151 (1) A prescribed railway company’s maximum revenue entitlement for the movement of grain in a crop year is the amount determined by the Agency in accordance with the formula

  [A/B + ((C - D) × $0.022)] × E × F

  where

  A

  is the company’s revenues for the movement of grain in the base year;

  B

  is the number of tonnes of grain involved in the company’s movement of grain in the base year;

  C

  is the number of miles of the company’s average length of haul for the movement of grain in that crop year as determined by the Agency;

  D

  is the number of miles of the company’s average length of haul for the movement of grain in the base year;

  E

  is the number of tonnes of grain involved in the company’s movement of grain in the crop year as determined by the Agency; and

  F

  is the volume-related composite price index as determined by the Agency.

• Marginal note:Canadian National Railway Company

  (2) For the purposes of subsection (1), in the case of the Canadian National Railway Company,

  • (a) A is $348,000,000;

  • (b) B is 12,437,000; and

  • (c) D is 1,045.

• Marginal note:Canadian Pacific Railway Company

  (3) For the purposes of subsection (1), in the case of the Canadian Pacific Railway Company,

  • (a) A is $362,900,000;

  • (b) B is 13,894,000; and

  • (c) D is 897.

• Marginal note:Volume-related composite price index

  (4) The following rules are applicable to the volume-related composite price index:

  • (a) in the crop year 2000-2001, the index is deemed to be 1.0;

  • (b) the index applies in respect of all of the prescribed railway companies; and

  • (c) the Agency shall make adjustments to the index to reflect the costs incurred by the prescribed railway companies for the purpose of obtaining cars as a result of the sale, lease or other disposal or withdrawal from service of government hopper cars and the costs incurred by the prescribed railway companies for the maintenance of cars that have been so obtained.

• Marginal note:When Agency to make determination

  (5) The Agency shall make the determination of a prescribed railway company’s maximum revenue entitlement for the movement of grain in a crop year under subsection (1) on or before December 31 of the following crop year and shall make the determination of the volume-related composite price index on or before April 30 of the previous crop year.

• Marginal note:Making of adjustments

  (6) Despite subsection (5), the Agency shall make the adjustments referred to in paragraph (4)(c) at any time that it considers appropriate and determine the date when the adjusted index takes effect.

List of Available Sidings

Marginal note:List of available sidings

• 151.1 (1) A prescribed railway company shall prepare and keep up to date a list of the sidings that it makes available in the Western Division where railway cars that are allocated by the Canadian Grain Commission under subsection 87(2) of the Canada Grain Act can be loaded.

• Marginal note:Publication of list

  (2) The railway company shall publish the list on its Internet site.

• Marginal note:Removal from list

  (3) The railway company may remove a siding from the list only after the expiry of 60 days after the publication of a notice of its intention to do so in a newspaper of general circulation in the area where the siding is located.

Regulations

Marginal note:Regulations

152 The Governor in Council may make regulations

• (a) specifying railway companies for the purposes of the definition prescribed railway company in section 147;

• (b) specifying, in respect of a prescribed railway company other than the Canadian National Railway Company or the Canadian Pacific Railway Company,

  • (i) revenues for the movement of grain in the base year,

  • (ii) the number of tonnes for the movement of grain in the base year, and

  • (iii) the average length of haul for the movement of grain in the base year;

• (c) specifying a penalty for the purposes of subsection 150(2) and respecting the paying out of the penalty and the excess amount; and

• (d) for carrying out the purposes and provisions of this Division.

DIVISION VI.1Public Passenger Service Providers

Dispute Resolution

Marginal note:Application

• 152.1 (1) Whenever a public passenger service provider and a railway company are unable to agree in respect of any matter raised in the context of the negotiation of any agreement concerning the use of the railway company’s railway, land, equipment, facilities or services by the public passenger service provider or concerning the conditions, or the amount to be paid, for that use, the public passenger service provider may, after reasonable efforts to resolve the matter have been made, apply to the Agency to decide the matter.

• Marginal note:Application

  (2) Whenever a public passenger service provider and a railway company are unable to agree in respect of any matter raised in the context of the implementation of any matter previously decided by the Agency, either the public passenger service provider or the railway company may, after reasonable efforts to resolve the matter have been made, apply to the Agency to decide the matter.

Marginal note:Amount to be fixed

• 152.2 (1) If, pursuant to an application made under subsection 152.1(1), the Agency fixes the amount to be paid by the public passenger service provider for the use of any of the railway company’s railway, land, equipment, facilities or services, that amount must reflect the cost associated with the public passenger service provider’s use of that railway, land or equipment or those facilities or services.

• Marginal note:Factors

  (2) In determining that amount, the Agency must take into consideration, among other things,

  • (a) the variable costs incurred by the railway company as a result of the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services, including, but not limited to, its variable costs incurred to maintain safe operations and to avoid congestion and undue delay;

  • (b) the railway company’s cost of capital, based on a rate set by the Agency, applied to the net book value of the assets to be used by the public passenger service provider, less any amount to be paid by the public passenger service provider in respect of those assets;

  • (c) the cost of any improvements made by the railway company in relation to the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services;

  • (d) a reasonable contribution towards the railway company’s constant costs; and

  • (e) the value of any benefits that would accrue to the railway company from any investment made by the public passenger service provider.

Marginal note:Duration of decision

152.3 Any decision of the Agency in respect of an application made under subsection 152.1(1) is binding on the parties for a period of five years after the day on which the decision is made, or for any other period agreed to by the parties that is specified in the decision.

Agreements

Marginal note:Providing copies

• 152.4 (1) A railway company or a public passenger service provider must provide to any person who requests it

  • (a) a copy of any agreement entered into on or after the day on which this section comes into force concerning the use of the railway company’s railway, land, equipment, facilities or services; and

  • (b) subject to subsection (2), a copy of any agreement entered into before the day on which this section comes into force concerning the use of the railway company’s railway, land, equipment, facilities or services.

• Marginal note:Exclusion

  (2) The Agency may, on application by a railway company or a public passenger service provider, exclude an agreement, or any specified portion of an agreement, from the application of paragraph (1)(b) on the grounds that harm would likely result to the applicant if the agreement, or the specified portion, were to be disclosed.

153 to 155 [Repealed, 2000, c. 16, s. 10]

DIVISION VIIOther Matters

Accounting

Marginal note:Uniform accounting system for CN and CP

• 156 (1) The Agency may prescribe for the Canadian National Railway Company and the Canadian Pacific Limited a uniform classification and system of accounts of their assets, liabilities, revenues, working expenditures, capitalization, traffic and operating statistics relating to railway operations.

• Marginal note:Uniform accounting system for other railway companies

  (2) The Agency may prescribe for any other railway company a uniform classification and system as described in subsection (1) or in a condensed form.

• Marginal note:Items to be classed

  (3) The Agency may prescribe the items to be classed as items relating to railway operations in the accounts.

• Marginal note:Depreciation

  (4) The Agency may prescribe the classes of property for which depreciation charges may properly be included under operating expenses in the accounts, and the rates of depreciation to be charged with respect to each of the classes of property.

• Marginal note:Requirements to keep accounts

  (5) A railway company for which a classification and system of accounts is prescribed shall keep its accounts in accordance with the prescribed classification and system.

Determination of Costs

Marginal note:Regulations for determining costs

• 157 (1) The Agency may make regulations prescribing items and factors that it shall consider in determining costs under this Part, including depreciation and the cost of capital.

• Marginal note:Additional considerations

  (2) The Agency may also consider

  • (a) the principles of costing adopted by the Royal Commission on Transportation appointed by the Order in Council dated May 13, 1959 in arriving at the conclusions contained in its report; and

  • (b) later developments in railway costing methods and techniques and current conditions of railway operations.

• Marginal note:Computation of costs of a portion of an undertaking

  (3) If the costs of a portion of the railway of a railway company, or one of its operations, are to be computed

  • (a) for a particular period, the Agency must include in the computation any of the costs of the whole railway, or any other portion of it, that, in the opinion of the Agency, are reasonably attributable to the portion or operation, irrespective of when, in what manner or by whom the costs were incurred; and

  • (b) in respect of future operations of the company, the costs must be determined in accordance with estimates made on any basis that, in the opinion of the Agency, is reasonable in the circumstances.

• Marginal note:Determination final and binding

  (4) A determination of costs by the Agency under this Part is final and binding on all interested or affected parties.

Agreements

Marginal note:Agreements to apply transportation law to provincial railways

• 157.1 (1) The Minister may enter into an agreement with a provincial minister responsible for transportation matters providing for the administration, in relation to persons who operate railways within the legislative authority of the province, of any law respecting

  • (a) accident investigations and railway crossings; or

  • (b) railway noise and vibration, or the regulation of the rates and conditions of service of railway companies, to the extent that those matters are governed by this Act.

• Marginal note:Designation

  (2) The Minister may designate any body established under an Act of Parliament, or any person or class of persons employed in the federal public administration, to administer the law in accordance with the agreement.

• Marginal note:Functions, duties and powers

  (3) The designated body, person or class of persons may perform any function or duty and exercise any powers necessary for the enforcement of the law, to the extent specified in the agreement.

Marginal note:Agreements made with provincial authorities

158 The Minister may enter into an agreement with a provincial authority to authorize the provincial authority to regulate the construction and operation of a railway as well as the rates and conditions of service in the same manner and to the same extent as it may regulate a railway within its jurisdiction.

PART IVArbitrations

DIVISION IFinal Offer Arbitration

Marginal note:Application of sections 161 to 169

• 159 (1) Sections 161 to 169 apply only in respect of matters arising between shippers and carriers that involve

  • (a) the carriage of goods by air to which Part II applies, other than their carriage internationally;

  • (b) the carriage of goods by railways to which this Act applies, other than the carriage of goods in trailers or containers on flat cars unless the containers arrive by water at a port in Canada, served by only one railway company, for further movement by rail or arrive by rail at such a port in Canada for further movement by water; or

  • (c) the carriage by water, for hire or reward, of goods required for the maintenance or development of a municipality or any permanent settlement for northern marine resupply purposes, other than goods required in relation to national defence or in relation to the exploration for or the development, extraction or processing of oil, gas or any mineral.

• Marginal note:Scope of paragraph (1)(c)

  (2) Paragraph (1)(c) applies only to resupply services on

  • (a) the rivers, streams, lakes and other waters within the watershed of the Mackenzie River;

  • (b) the territorial sea and internal waters of Canada that are adjacent to the coast of the mainland and islands of the Canadian Arctic and situated within the area bounded by the meridians of longitude 95° West and 141° West and the parallels of latitude 66° 00′30″ North and 74°00′20″ North; and

  • (c) the internal waters of Canada comprised in Spence Bay and Shepherd Bay and situated east of the meridian of longitude 95° West.

• Marginal note:Application

  (3) Paragraph (1)(c) applies only if

  • (a) the total register tonnage of all ships used to provide the resupply service exceeds fifty register tons; or

  • (b) the resupply service originates from a point situated on the waters described in subsection (2).

Marginal note:Rail passenger services

160 Sections 161 to 169 also apply, with any modifications that the circumstances require, in respect of the rates charged or proposed to be charged by, and in respect of any of the conditions associated with the provision of services by, a railway company to any other railway company engaged in passenger rail services, except a public passenger service provider as defined in section 87.

Marginal note:Submission for final offer arbitration

• 161 (1) A shipper who is dissatisfied with the rate or rates charged or proposed to be charged by a carrier for the movement of goods, or with any of the conditions associated with the movement of goods, may, if the matter cannot be resolved between the shipper and the carrier, submit the matter in writing to the Agency for a final offer arbitration to be conducted by one arbitrator or, if the shipper and the carrier agree, by a panel of three arbitrators.

• Marginal note:Contents of submission

  (2) A copy of a submission under subsection (1) shall be served on the carrier by the shipper and the submission shall contain

  • (a) the final offer of the shipper to the carrier in the matter, excluding any dollar amounts;

  • (b) [Repealed, 2000, c. 16, s. 11]

  • (c) an undertaking by the shipper to ship the goods to which the arbitration relates in accordance with the decision of the arbitrator;

  • (d) an undertaking by the shipper to the Agency whereby the shipper agrees to pay to the arbitrator the fee for which the shipper is liable under section 166 as a party to the arbitration; and

  • (e) the name of the arbitrator, if any, that the shipper and the carrier agreed should conduct the arbitration or, if they agreed that the arbitration should be conducted by a panel of three arbitrators, the name of an arbitrator chosen by the shipper and the name of an arbitrator chosen by the carrier.

• Marginal note:Arbitration precluded in certain cases

  (3) The Agency shall not have any matter submitted to it by a shipper under subsection (1) arbitrated if the shipper has not, at least five days before making the submission, served on the carrier a written notice indicating that the shipper intends to submit the matter to the Agency for a final offer arbitration.

• Marginal note:Final offer arbitration not a proceeding

  (4) A final offer arbitration is not a proceeding before the Agency.

Marginal note:Submission of final offers

• 161.1 (1) Within 10 days after a submission is served under subsection 161(2), the shipper and the carrier shall submit to the Agency their final offers, including dollar amounts.

• Marginal note:Copies to the parties

  (2) Without delay after final offers are submitted under subsection (1) by both the shipper and the carrier, the Agency shall provide the shipper and the carrier with copies of each other’s final offer.

• Marginal note:If no final offer from a party

  (3) If one party does not submit a final offer in accordance with subsection (1), the final offer submitted by the other party is deemed to be the final offer selected by the arbitrator under subsection 165(1).

Marginal note:Arbitration

• 162 (1) Notwithstanding any application filed with the Agency by a carrier in respect of a matter, within five days after final offers are received under subsection 161.1(1), the Agency shall refer the matter for arbitration

  • (a) if the parties did not agree that the arbitration should be conducted by a panel of three arbitrators, to the arbitrator, if any, named under paragraph 161(2)(e) or, if that arbitrator is not, in the opinion of the Agency, available to conduct the arbitration or no arbitrator is named, to an arbitrator on the list of arbitrators referred to in section 169 who the Agency chooses and determines is appropriate and available to conduct the arbitration; and

  • (b) if the parties agreed that the arbitration should be conducted by a panel of three arbitrators,

    • (i) to the arbitrators named by the parties under paragraph 161(2)(e) and to any arbitrator who those arbitrators have, within 10 days after the submission was served under subsection 161(2), notified the Agency that they have agreed on, or if those arbitrators did not so notify the Agency, to an arbitrator on the list of arbitrators referred to in section 169 who the Agency chooses and determines is appropriate and available to conduct the arbitration, or

    • (ii) if an arbitrator referred to in subparagraph (i) is not, in the opinion of the Agency, available to conduct the arbitration, to the arbitrators named in that subparagraph who are available and to an arbitrator chosen by the Agency from the list of arbitrators referred to in section 169 who the Agency determines is appropriate and available to conduct the arbitration.

• Marginal note:Interpretation

  (1.1) If a matter was referred to a panel of arbitrators, every reference in subsections (1.2) and (2) and sections 163 to 169 to an arbitrator or the arbitrator shall be construed as a reference to a panel of arbitrators or the panel of arbitrators, as the case may be.

• Marginal note:Delay in referral

  (1.2) If the shipper consents to an application referred to in subsection (1) being heard before the matter is referred to an arbitrator, the Agency shall defer referring the matter until the application is dealt with.

• Marginal note:Assistance by Agency

  (2) The Agency may, at the request of the arbitrator, provide administrative, technical and legal assistance to the arbitrator on a cost recovery basis.

Marginal note:Decision or order affecting a matter being arbitrated

162.1 The Agency may, in addition to any other decision or order it may make, order that an arbitration be discontinued, that it be continued subject to the terms and conditions that the Agency may fix or that the decision of the arbitrator be set aside if

• (a) the Agency makes a decision or an order arising out of an application that is in respect of a matter submitted to the Agency for a final offer arbitration and that is filed by a carrier before the matter is referred to arbitration; and

• (b) the decision or order affects the arbitration.

Marginal note:Procedure

• 163 (1) In the absence of an agreement by the arbitrator and the parties as to the procedure to be followed, a final offer arbitration shall be governed by the rules of procedure made by the Agency.

• Marginal note:Procedure generally

  (2) The arbitrator shall conduct the arbitration proceedings as expeditiously as possible and, subject to the procedure referred to in subsection (1), in the manner the arbitrator considers appropriate having regard to the circumstances of the matter.

• Marginal note:Exchange of information

  (3) Within fifteen days after the Agency refers a matter for arbitration, the parties shall exchange the information that they intend to submit to the arbitrator in support of their final offers.

• Marginal note:Interrogatories

  (4) Within seven days after receipt of the information referred to in subsection (3), each party may direct interrogatories to the other, which shall be answered within fifteen days after their receipt.

• Marginal note:Withholding of information

  (5) If a party unreasonably withholds information that the arbitrator subsequently deems to be relevant, that withholding shall be taken into account by the arbitrator in making a decision.

Marginal note:Arbitration information

• 164 (1) The arbitrator shall, in conducting a final offer arbitration between a shipper and a carrier, have regard to the information provided to the arbitrator by the parties in support of their final offers and, unless the parties agree to limit the amount of information to be provided, to any additional information that is provided by the parties at the arbitrator’s request.

• Marginal note:Arbitration considerations

  (2) Unless the parties agree otherwise, in rendering a decision the arbitrator shall have regard to whether there is available to the shipper an alternative, effective, adequate and competitive means of transporting the goods to which the matter relates and to all considerations that appear to the arbitrator to be relevant to the matter.

Marginal note:Summary process

164.1 If the Agency determines that a shipper’s final offer submitted under subsection 161.1(1) involves freight charges in an amount of not more than $750,000 and the shipper did not indicate a contrary intention when submitting the offer, sections 163 and 164 do not apply and the arbitration shall proceed as follows:

• (a) within seven days after a matter is referred to an arbitrator, the shipper and the carrier may file with the arbitrator a response to the final offer of the other party;

• (b) subject to paragraph (c), the arbitrator shall decide the matter on the basis of the final offers and any response filed under paragraph (a); and

• (c) if the arbitrator considers it necessary, the arbitrator may invite the parties to make oral representations or may ask the parties to appear before him or her to provide further information.

Marginal note:Decision of arbitrator

• 165 (1) The decision of the arbitrator in conducting a final offer arbitration shall be the selection by the arbitrator of the final offer of either the shipper or the carrier.

• Marginal note:Requirements re decision

  (2) The decision of the arbitrator shall

  • (a) be in writing;

  • (b) unless the parties agree otherwise, be rendered within 60 days or, in the case of an arbitration conducted in accordance with section 164.1, 30 days after the date on which the submission for the final offer arbitration was received by the Agency; and

  • (c) unless the parties agree otherwise, be rendered so as to apply to the parties for a period of one year or any lesser period that may be appropriate, having regard to the negotiations between the parties that preceded the arbitration.

• Marginal note:Incorporation in tariff

  (3) The carrier shall, without delay after the arbitrator’s decision, set out the rate or rates or the conditions associated with the movement of goods that have been selected by the arbitrator in a tariff of the carrier, unless, where the carrier is entitled to keep the rate or rates or conditions confidential, the parties to the arbitration agree to include the rate or rates or conditions in a contract that the parties agree to keep confidential.

• Marginal note:Reasons not required

  (4) No reasons shall be set out in the decision of the arbitrator.

• Marginal note:Reasons may be requested

  (5) The arbitrator shall, if requested by all of the parties to the arbitration within 30 days or, in the case of an arbitration conducted in accordance with section 164.1, seven days after the decision of the arbitrator, give written reasons for the decision.

• Marginal note:Application of decision

  (6) Except where both parties agree otherwise,

  • (a) the decision of the arbitrator on a final offer arbitration shall be final and binding and be applicable to the parties as of the date on which the submission for the arbitration was received by the Agency from the shipper, and is enforceable as if it were an order of the Agency; and

  • (b) the arbitrator shall direct in the decision that interest at a reasonable rate specified by the arbitrator shall be paid to one of the parties by the other on moneys that, as a result of the application of paragraph (a), are owed by a party for the period between the date referred to in that paragraph and the date of the payment.

• Marginal note:Payment by party

  (7) Moneys and interest referred to in paragraph (6)(b) that are owed by a party pursuant to a decision of the arbitrator shall be paid without delay to the other party.

Marginal note:Arbitration fees

• 166 (1) The Agency may fix the fee to be paid to an arbitrator for the costs of, and the services provided by, the arbitrator in final offer arbitration proceedings.

• Marginal note:Payment of fees and costs

  (2) The shipper and the carrier shall share equally, whether or not the proceedings are terminated pursuant to section 168, in the payment of the fee fixed under subsection (1) and in the cost

  • (a) borne by the Agency for administrative, technical and legal services provided to the arbitrator pursuant to subsection 162(2); and

  • (b) of the preparation of any reasons requested pursuant to subsection 165(5).

Marginal note:Confidentiality of information

167 Where the Agency is advised that a party to a final offer arbitration wishes to keep matters relating to the arbitration confidential,

• (a) the Agency and the arbitrator shall take all reasonably necessary measures to ensure that the matters are not disclosed by the Agency or the arbitrator or during the arbitration proceedings to any person other than the parties; and

• (b) no reasons for the decision given pursuant to subsection 165(5) shall contain those matters or any information included in a contract that the parties agreed to keep confidential.

Marginal note:Termination of proceedings

168 Where, before the arbitrator renders a decision on a final offer arbitration, the parties advise the Agency or the arbitrator that they agree that the matter being arbitrated should be withdrawn from arbitration, the arbitration proceedings in respect of the matter shall be immediately terminated.

Marginal note:List of arbitrators

• 169 (1) The Agency shall, from time to time, in consultation with representatives of shippers and carriers, establish a list of persons who agree to act as arbitrators in final offer arbitrations. The list must state which of the persons have indicated that they have expertise that may assist them in conducting final offer arbitrations and the nature of that expertise.

• Marginal note:List per mode

  (2) A separate list of persons may be established under subsection (1) in respect of each or any mode of transportation, as the Agency considers appropriate.

• Marginal note:Publication of list

  (3) The Agency shall have the list of persons made known to representatives of shippers and carriers throughout Canada.

Marginal note:Mediation

• 169.1 (1) The parties to a final offer arbitration may, by agreement, refer to a mediator, which may be the Agency, a matter that has been submitted for a final offer arbitration under section 161.

• Marginal note:Establishment of roster

  (2) The Agency may establish a roster of persons, which may include members and staff of the Agency, to act as mediators in any matter referred to it under subsection (1).

• Marginal note:Confidentiality of mediation

  (3) All matters relating to the mediation shall be kept confidential, unless the parties otherwise agree, and information provided by a party for the purposes of the mediation shall not be used for any other purpose without the consent of that party.

• Marginal note:Time limit for completion of mediation

  (4) Unless the parties otherwise agree, the mediation shall be completed within 30 days after the matter is referred for mediation.

• Marginal note:Effect of mediation on final offer arbitration

  (5) The mediation has the effect of

  • (a) staying the conduct of the final offer arbitration for the period of the mediation; and

  • (b) extending the time within which the arbitrator must make a decision in the matter of the final offer arbitration by the period of the mediation.

• Marginal note:Mediator not to act in other proceedings

  (6) The person who acts as mediator may not act in any other proceedings in relation to any matter that was at issue in the mediation.

Marginal note:Joint offer of several shippers

• 169.2 (1) In the case where more than one shipper is dissatisfied with the rate or rates charged or proposed to be charged by a carrier for the movement of goods, or with any conditions associated with the movement of goods, those shippers may, if the matter cannot be resolved between them and the carrier, submit the matter jointly to the Agency for a final offer arbitration, in which case sections 161 to 169 apply, with any modifications that the circumstances require.

• Marginal note:Common matter and application of the offer

  (2) A matter submitted jointly to the Agency for a final offer arbitration shall be common to all the shippers and the shippers shall make a joint offer in respect of the matter, the terms of which apply to all of them.

• Marginal note:Arbitration precluded in certain cases

  (3) The Agency shall not have any matter submitted to it for a final offer arbitration under subsection (1) arbitrated unless the shippers demonstrate, to the satisfaction of the Agency, that an attempt has been made to mediate the matter.

• Marginal note:Confidentiality of mediation

  (4) All matters relating to a mediation shall be kept confidential, unless the parties otherwise agree, and information provided by a party for the purposes of the mediation shall not be used for any other purpose without the consent of that party.

• Marginal note:Mediator not to act in other proceedings

  (5) The person who acts as mediator may not act in any other proceedings in relation to any matter that was at issue in the mediation.

• Marginal note:Matter submitted by more than one shipper

  (6) In the case of a matter that is submitted jointly under subsection (1),

  • (a) the period referred to in subsection 161.1(1) is 20 days;

  • (b) the arbitrator may, if he or she considers it necessary, extend any of the periods referred to in subsections 163(3) and (4) and paragraph 164.1(a); and

  • (c) the decision of the arbitrator shall, despite paragraph 165(2)(b), be rendered within 120 days or, in the case of an arbitration conducted in accordance with section 164.1, 90 days after the day on which the submission for the final offer arbitration is received by the Agency unless the parties agree otherwise.

Marginal note:Time limit — preliminary applications

• 169.3 (1) Despite sections 162 and 162.1, any application filed with the Agency by a carrier in respect of a matter submitted jointly to the Agency under subsection 169.2(1) shall be filed with the Agency no later than seven days after the day on which the joint submission is made.

• Marginal note:Service of copy

  (2) A copy of the application shall be served on each of the shippers making the joint submission no later than the day on which the application is required to be filed under subsection (1).

• Marginal note:Joint answer

  (3) The shippers, no later than five days after the day on which the last shipper was served under subsection (2), shall file with the Agency a joint answer to the application and serve a copy of it on the carrier.

• Marginal note:Reply

  (4) The carrier, no later than two days after the day on which it was served under subsection (3), shall file with the Agency a reply to the joint answer and serve a copy of it on each of the shippers.

• Marginal note:Decision of Agency

  (5) The Agency shall issue its decision on the application no later than the day on which the matter is required to be referred to arbitration under subsection 162(1).

• Marginal note:Deemed conformity

  (6) If no application referred to in subsection (1) is filed within the limit set out in that subsection, the matter submitted jointly is deemed to conform to the requirements of subsection 169.2(2).

DIVISION IIArbitration on Level of Services

Marginal note:Submission for arbitration — confidential contract

• 169.31 (1) If a shipper and a railway company are unable to agree and enter into a contract under subsection 126(1) respecting the manner in which the railway company must fulfil its service obligations under section 113, the shipper may submit any of the following matters, in writing, to the Agency for arbitration:

  • (a) the operational terms that the railway company must comply with in respect of receiving, loading, carrying, unloading and delivering the traffic, including performance standards and communication protocols;

  • (b) the operational terms that the railway company must comply with if it fails to comply with an operational term described in paragraph (a);

  • (c) any operational term that the shipper must comply with that is related to an operational term described in paragraph (a) or (b);

  • (d) any service provided by the railway company incidental to transportation that is customary or usual in connection with the business of a railway company; or

  • (e) the question of whether the railway company may apply a charge with respect to an operational term described in paragraph (a) or (b) or for a service described in paragraph (d).

• Marginal note:Regulations

  (1.1) The Agency may make regulations specifying what constitutes operational terms for the purposes of paragraphs (1)(a) to (c).

• Marginal note:Matter excluded from arbitration

  (2) The shipper is not entitled to submit to the Agency for arbitration a matter that

  • (a) is governed by a written agreement, including a confidential contract, to which the shipper and the railway company are parties; or

  • (b) is the subject of an order, other than an interim order, made under subsection 116(4).

• Marginal note:Excluded matter — traffic

  (3) The shipper is not entitled to submit to the Agency for arbitration a matter that is in respect of traffic that is the subject of

  • (a) a confidential contract between the shipper and the railway company that is in force immediately before the day on which this section comes into force;

  • (b) a tariff, or a contract, referred to in subsection 165(3);

  • (c) a competitive line rate; or

  • (d) an arbitrator’s decision made under section 169.37.

• Marginal note:Clarification

  (4) For greater certainty, neither a rate for the movement of the traffic nor the amount of a charge for that movement or for the provision of incidental services is to be subject to arbitration.

Marginal note:Contents of submission

• 169.32 (1) The submission must contain

  • (a) a detailed description of the matters submitted to the Agency for arbitration;

  • (b) a description of the traffic to which the service obligations relate;

  • (c) an undertaking with respect to the traffic, if any, given by the shipper to the railway company that must be complied with for the period during which the arbitrator’s decision applies to the parties, other than an undertaking given by the shipper to the railway company with respect to an operational term described in paragraph 169.31(1)(c);

  • (d) an undertaking given by the shipper to the railway company to ship the goods to which the service obligations relate in accordance with the arbitrator’s decision; and

  • (e) an undertaking given by the shipper to the Agency to pay the fee and costs for which the shipper is liable under subsection 169.39(3) as a party to the arbitration.

• Marginal note:Copy of submission served

  (2) The shipper must serve a copy of the submission on the railway company on the day on which it submits the matters to the Agency for arbitration.

Marginal note:Arbitration precluded in certain cases

• 169.33 (1) The Agency must dismiss the submission if

  • (a) the shipper has not, at least 15 days before making it, served on the railway company and the Agency a written notice indicating that the shipper intends to make a submission to the Agency for arbitration; or

  • (b) the shipper does not demonstrate, to the Agency’s satisfaction, that an attempt has been made to resolve the matters contained in it.

• Marginal note:Content of notice

  (2) The notice must contain the descriptions referred to in paragraphs 169.32(1)(a) and (b) and, if the shipper’s submission will contain an undertaking described in paragraph 169.32(1)(c), a description of that undertaking.

Marginal note:Submission of proposals

• 169.34 (1) Despite any application filed under section 169.43, the shipper and the railway company must each submit, within 10 days after the day on which a copy of a submission is served under subsection 169.32(2), to the Agency, in order to resolve the matters that are submitted to it for arbitration by the shipper, a proposal that contains any of the following terms:

  • (a) any operational term described in paragraph 169.31(1)(a), (b) or (c);

  • (b) any term for the provision of a service described in paragraph 169.31(1)(d); or

  • (c) any term with respect to the application of a charge described in paragraph 169.31(1)(e).

• Marginal note:Proposals provided to parties

  (2) The Agency must provide the shipper and the railway company with a copy of the other party’s proposal immediately after the day on which it receives the last of the two proposals.

• Marginal note:Exchange of information

  (3) The parties must exchange the information that they intend to submit to the arbitrator in support of their proposals within 20 days after the day on which a copy of a submission is served under subsection 169.32(2) or within a period agreed to by the parties or fixed by the arbitrator.

• Marginal note:Exception

  (4) Unless the parties agree otherwise, a party to the arbitration is not, in support of the proposal it submits under subsection (1), to refer to any offer, or any part of an offer, that was made to it — before a copy of the submission is served under subsection 169.32(2) — by the other party to the arbitration for the purpose of entering into a confidential contract.

• Marginal note:If no proposal from party

  (5) If one party does not submit a proposal in accordance with subsection (1), the proposal submitted by the other party is the arbitrator’s decision made under section 169.37.

Marginal note:Arbitration

• 169.35 (1) Despite any application filed under section 169.43, the Agency must refer, within two business days after the day on which it receives the last of the two proposals, the matters for arbitration to be conducted by an arbitrator that it chooses.

• Marginal note:Arbitrator not to act in other proceedings

  (2) The arbitrator is not to act in any other proceedings in relation to a matter that is referred to him or her for arbitration.

• Marginal note:Assistance by Agency

  (3) The Agency may, at the arbitrator’s request, provide administrative, technical and legal assistance to the arbitrator.

• Marginal note:Arbitration not proceeding

  (4) The arbitration is not a proceeding before the Agency.

Marginal note:Agency’s rules of procedure

• 169.36 (1) The Agency may make rules of procedure for an arbitration.

• Marginal note:Procedure generally

  (2) Subject to any rule of procedure made by the Agency and in the absence of an agreement between the arbitrator and the parties as to the procedure to be followed, the arbitrator must conduct the arbitration as quickly as possible and in the manner that he or she considers appropriate having regard to the circumstances of the matter.

• Marginal note:Questions

  (3) Each party may direct questions to the other in the manner that the arbitrator considers appropriate.

Marginal note:Arbitrator’s decision

169.37 The arbitrator’s decision must establish any operational term described in paragraph 169.31(1)(a), (b) or (c), any term for the provision of a service described in paragraph 169.31(1)(d) or any term with respect to the application of a charge described in paragraph 169.31(1)(e), or any combination of those terms, that the arbitrator considers necessary to resolve the matters that are referred to him or her for arbitration. In making his or her decision, the arbitrator must have regard to the following:

• (a) the traffic to which the service obligations relate;

• (b) the service that the shipper requires with respect to the traffic;

• (c) any undertaking described in paragraph 169.32(1)(c) that is contained in the shipper’s submission;

• (d) the railway company’s service obligations under section 113 to other shippers and the railway company’s obligations to persons and other companies under section 114;

• (e) the railway company’s obligations, if any, with respect to a public passenger service provider;

• (f) the railway company’s and the shipper’s operational requirements and restrictions;

• (g) the question of whether there is available to the shipper an alternative, effective, adequate and competitive means of transporting the goods to which the service obligations relate; and

• (h) any information that the arbitrator considers relevant.

Marginal note:Requirements of decision

• 169.38 (1) The arbitrator’s decision must

  • (a) be made in writing;

  • (b) be made so as to apply to the parties for a period of one year as of the date of his or her decision, unless the parties agree otherwise; and

  • (c) be commercially fair and reasonable to the parties.

• Marginal note:Decision binding

  (2) The arbitrator’s decision is final and binding on the parties and is deemed, for the purposes of Division IV of Part III and its enforceability between the parties, to be a confidential contract.

• Marginal note:Period for making decision

  (3) The arbitrator’s decision must be made within 45 days after the day on which the matters are submitted to the Agency for arbitration under subsection 169.31(1) unless in the arbitrator’s opinion making a decision within that period is not practical, in which case the arbitrator must make his or her decision within 65 days after that day.

• Marginal note:Period — agreement of parties

  (4) Despite subsection (3), the arbitrator may, with the agreement of the parties, make his or her decision within a period that is longer than 65 days after the day on which the matters are submitted to the Agency for arbitration.

• Marginal note:Copy of decision to Agency

  (5) The arbitrator must provide the Agency with a copy of his or her decision.

Marginal note:Arbitration fees

• 169.39 (1) The Agency may fix the fee to be paid to it or, if the arbitrator is not a member or on the staff of the Agency, to the arbitrator for the arbitrator’s services in arbitration proceedings.

• Marginal note:Arbitration fees — not member

  (2) An arbitrator who is not a member or on the staff of the Agency may fix a fee for his or her services if the Agency does not do so under subsection (1).

• Marginal note:Payment of fees and costs

  (3) The shipper and the railway company are to share equally, whether or not the proceedings are terminated under section 169.41, in the payment of the fee for the arbitrator’s services and in the payment of the costs related to the arbitration, including those borne by the Agency in providing administrative, technical and legal assistance to the arbitrator under subsection 169.35(3).

• Marginal note:Cost related to arbitration

  (4) Costs related to the arbitration also include the cost to the Agency when a member or a person on the staff of the Agency acts as an arbitrator and the Agency does not fix a fee for that arbitrator under subsection (1).

Marginal note:Confidentiality of information

• 169.4 (1) If the Agency and the arbitrator are advised that a party to an arbitration wishes to keep information relating to the arbitration confidential, the Agency and the arbitrator must take all reasonably necessary measures to ensure that the information is not disclosed by the Agency or the arbitrator or during the arbitration to any person other than the parties.

• Marginal note:Limited disclosure

  (2) Despite subsection (1), the Agency may, in the exercise of its powers or in the performance of its duties and functions under this Act, disclose any information that a party advised the Agency and the arbitrator it wishes to keep confidential.

Marginal note:Termination of proceedings

169.41 If, before the arbitrator makes his or her decision, the parties advise the Agency or the arbitrator that they agree that the matters being arbitrated should be withdrawn from arbitration, any proceedings in respect of those matters are immediately terminated.

Marginal note:List of arbitrators

• 169.42 (1) The Agency, in consultation with representatives of shippers and railway companies, must establish a list of persons, including persons who are members or on the staff of the Agency, who agree to act as arbitrators in arbitrations.

• Marginal note:Expertise required

  (2) Only persons who, in the Agency’s opinion, have sufficient expertise to act as arbitrators are to be named in the list.

• Marginal note:Publication of list

  (3) The Agency must publish the list on its Internet site.

Marginal note:Application for order

• 169.43 (1) A railway company may apply to the Agency, within 10 days after the day on which it is served with a copy of a submission under subsection 169.32(2), for an order declaring that the shipper is not entitled to submit to the Agency for arbitration a matter contained in the shipper’s submission.

• Marginal note:Content of order

  (2) If the Agency makes the order, it may also

  • (a) dismiss the submission for arbitration, if the matter contained in it has not been referred to arbitration;

  • (b) discontinue the arbitration;

  • (c) subject the arbitration to any terms that it specifies; or

  • (d) set aside the arbitrator’s decision or any part of it.

• Marginal note:Period for making decision

  (3) The Agency must make a decision on the railway company’s application made under subsection (1) as soon as feasible but not later than 35 days after the day on which it receives the application.

PART VTransportation of Persons with Disabilities

Marginal note:Regulations

• 170 (1) The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting

  • (a) the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;

  • (b) the training of personnel employed at or in those facilities or premises or by carriers;

  • (c) tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and

  • (d) the communication of information to persons with disabilities.

• Marginal note:Incorporation by reference

  (2) Regulations made under subsection (1) incorporating standards or enactments by reference may incorporate them as amended from time to time.

• Marginal note:Exemption

  (3) The Agency may, with the approval of the Governor in Council, make orders exempting specified persons, means of transportation, services or related facilities and premises from the application of regulations made under subsection (1).

Marginal note:Coordination

171 The Agency and the Canadian Human Rights Commission shall coordinate their activities in relation to the transportation of persons with disabilities in order to foster complementary policies and practices and to avoid jurisdictional conflicts.

Marginal note:Inquiry re obstacles to persons with disabilities

• 172 (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

• Marginal note:Compliance with regulations

  (2) Where the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.

• Marginal note:Remedies

  (3) On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

PART VIGeneral

Enforcement

Marginal note:False information, etc.

• 173 (1) No person shall knowingly make any false or misleading statement or knowingly provide false or misleading information to the Agency or the Minister or to any person acting on behalf of the Agency or the Minister in connection with any matter under this Act.

• Marginal note:Obstruction and false statements

  (2) No person shall knowingly obstruct or hinder, or make any false or misleading statement, either orally or in writing, to a person designated as an enforcement officer pursuant to paragraph 178(1)(a) who is engaged in carrying out functions under this Act.

Marginal note:Offence

174 Every person who contravenes a provision of this Act or a regulation or order made under this Act, other than an order made under section 47, is guilty of an offence punishable on summary conviction and liable

• (a) in the case of an individual, to a fine not exceeding $5,000; and

• (b) in the case of a corporation, to a fine not exceeding $25,000.

Marginal note:Officers, etc., of corporation re offences

175 Where a corporation commits an offence under this Act, every person who at the time of the commission of the offence was a director or officer of the corporation is guilty of the like offence unless the act or omission constituting the offence took place without the person’s knowledge or consent or the person exercised all due diligence to prevent the commission of the offence.

Marginal note:Time limit for commencement of proceedings

176 Proceedings by way of summary conviction in respect of an offence under this Act may be instituted within but not later than twelve months after the time when the subject-matter of the proceedings arose.

Administrative Monetary Penalties

Definition of Tribunal

176.1 For the purposes of sections 180.1 to 180.7, Tribunal means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.

Marginal note:Regulation-making powers

• 177 (1) The Agency may, by regulation,

  • (a) designate

    • (i) any provision of this Act or of any regulation, order or direction made pursuant to this Act,

    • (ii) the requirements of any provision referred to in subparagraph (i), or

    • (iii) any condition of a licence issued under this Act,

    as a provision, requirement or condition the contravention of which may be proceeded with as a violation in accordance with sections 179 and 180; and

  • (b) prescribe the maximum amount payable for each violation, but the amount shall not exceed

    • (i) $5,000, in the case of an individual, and

    • (ii) $25,000, in the case of a corporation.

• Marginal note:Regulation-making powers — railway company’s obligations

  (1.1) The Agency may, by regulation,

  • (a) designate any requirement imposed on a railway company in an arbitrator’s decision made under section 169.37 as a requirement the contravention of which may be proceeded with as a violation in accordance with sections 179 and 180; and

  • (b) prescribe the maximum amount payable for each violation, but the amount shall not be more than $100,000.

• Marginal note:Regulations by Minister

  (2) The Minister may, by regulation,

  • (a) designate as a provision or requirement the contravention of which may be proceeded with as a violation in accordance with sections 179 and 180 any provision of section 51 or of any regulation made under section 50 or 51, or any requirement of any of those provisions; and

  • (b) prescribe the maximum amount payable for each violation, but the amount shall not exceed

    • (i) $5,000, in the case of an individual, and

    • (ii) $25,000, in the case of a corporation.

• Marginal note:Subsection 116.2(1) or (4)

  (3) The contravention of subsection 116.2(1) or (4) may be proceeded with as a violation in accordance with sections 179 and 180. The maximum amount payable for each violation is $100,000.

Marginal note:Notices of violation

• 178 (1) The Agency, in respect of a violation referred to in subsection 177(1) or (1.1), or the Minister, in respect of a violation referred to in subsection 177(2) or (3), may

  • (a) designate persons, or classes of persons, as enforcement officers who are authorized to issue notices of violation; and

  • (b) establish the form and content of notices of violation.

• Marginal note:Powers of enforcement officers

  (2) Every person designated as an enforcement officer pursuant to paragraph (1)(a) has the powers of entry and inspection referred to in paragraph 39(a).

• Marginal note:Certification of designated persons

  (3) Every person designated as an enforcement officer pursuant to paragraph (1)(a) shall receive an authorization in prescribed form attesting to the person’s designation and shall, on demand, present the authorization to any person from whom the enforcement officer requests information in the course of the enforcement officer’s duties.

• Marginal note:Powers of designated persons

  (4) For the purposes of determining whether a violation referred to in section 177 has been committed, a person designated as an enforcement officer pursuant to paragraph (1)(a) may require any person to produce for examination or reproduction all or part of any document or electronically stored data that the enforcement officer believes on reasonable grounds contain any information relevant to the enforcement of this Act.

• Marginal note:Assistance to enforcement officers

  (5) Any person from whom documents or data are requested pursuant to subsection (4) shall provide all such reasonable assistance as is in their power to enable the enforcement officer making the request to carry out the enforcement officer’s duties and shall furnish such information as the enforcement officer reasonably requires for the purposes of this Act.

Marginal note:Violations

• 179 (1) Every person who contravenes a provision, requirement or condition designated under section 177 commits a violation and is liable to a penalty fixed pursuant to that section.

• Marginal note:Continuing violation

  (1.1) A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

• Marginal note:How contraventions may be proceeded with

  (2) Where any act or omission can be proceeded with as a violation or as an offence, proceedings may be commenced in respect of that act or omission as a violation or as an offence, but proceeding with it as a violation precludes proceeding with it as an offence, and proceeding with it as an offence precludes proceeding with it as a violation.

• Marginal note:Nature of violation

  (3) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note:Issuance of notice of violation

180 If a person designated as an enforcement officer under paragraph 178(1)(a) believes that a person has committed a violation, the enforcement officer may issue and serve on the person a notice of violation that names the person, identifies the violation and sets out

• (a) the penalty, established in accordance with the regulations made under section 177, for the violation that the person is liable to pay; and

• (b) the particulars concerning the time for paying and the manner of paying the penalty.

Marginal note:Option

180.1 A person who has been served with a notice of violation must either pay the amount of the penalty specified in the notice or file with the Tribunal a written request for a review of the facts of the alleged contravention or of the amount of the penalty.

Marginal note:Payment of specified amount precludes further proceedings

180.2 If a person who is served with a notice of violation pays the amount specified in the notice in accordance with the particulars set out in it, the Minister shall accept the amount as and in complete satisfaction of the amount of the penalty for the contravention by that person of the designated provision and no further proceedings under this Part shall be taken against the person in respect of that contravention.

Marginal note:Request for review of determination

• 180.3 (1) A person who is served with a notice of violation and who wishes to have the facts of the alleged contravention or the amount of the penalty reviewed shall, on or before the date specified in the notice or within any further time that the Tribunal on application may allow, file a written request for a review with the Tribunal at the address set out in the notice.

• Marginal note:Time and place for review

  (2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

• Marginal note:Review procedure

  (3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (4) The burden of establishing that a person has contravened a designated provision is on the Minister.

• Marginal note:Person not compelled to testify

  (5) A person who is alleged to have contravened a designated provision is not required, and shall not be compelled, to give any evidence or testimony in the matter.

Marginal note:Certificate

180.4 If a person neither pays the amount of the penalty in accordance with the particulars set out in the notice of violation nor files a request for a review under subsection 180.3(1), the person is deemed to have committed the contravention alleged in the notice, and the Minister may obtain from the Tribunal a certificate in the form that may be established by the Governor in Council that indicates the amount of the penalty specified in the notice.

Marginal note:Determination by Tribunal member

180.5 If, at the conclusion of a review under section 180.3, the member of the Tribunal who conducts the review determines that

• (a) the person has not contravened the designated provision that the person is alleged to have contravened, the member of the Tribunal shall without delay inform the person and the Minister of the determination and, subject to section 180.6, no further proceedings under this Part shall be taken against the person in respect of the alleged contravention; or

• (b) the person has contravened the designated provision that the person is alleged to have contravened, the member of the Tribunal shall without delay inform the person and the Minister of the determination and, subject to any regulations made under section 177, of the amount determined by the member of the Tribunal to be payable by the person in respect of the contravention and, if the amount is not paid to the Tribunal by or on behalf of the person within the time that the member of the Tribunal may allow, the member of the Tribunal shall issue to the Minister a certificate in the form that may be established by the Governor in Council, setting out the amount required to be paid by the person.

Marginal note:Right of appeal

• 180.6 (1) The Minister or a person affected by a determination made under section 180.5 may, within 30 days after the determination, appeal it to the Tribunal.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (3) The appeal panel of the Tribunal assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.

• Marginal note:Certificate

  (4) If the appeal panel finds that a person has contravened the designated provision, the panel shall without delay inform the person of the finding and, subject to any regulations made under section 177, of the amount determined by the panel to be payable by the person in respect of the contravention and, if the amount is not paid to the Tribunal by or on behalf of the person within the time allowed by the Tribunal, the Tribunal shall issue to the Minister a certificate in the form that may be established by the Governor in Council, setting out the amount required to be paid by the person.

Marginal note:Registration of certificate

• 180.7 (1) If the time limit for the payment of an amount determined by the Minister in a notice of violation has expired, the time limit for the request for a review has expired, the time limit for an appeal has expired, or an appeal has been disposed of, on production in any superior court, a certificate issued under section 180.4, paragraph 180.5(b) or subsection 180.6(4) shall be registered in the court. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment in that court obtained by Her Majesty in right of Canada against the person named in the certificate for a debt of the amount set out in the certificate.

• Marginal note:Recovery of costs and charges

  (2) All reasonable costs and charges attendant on the registration of the certificate are recoverable in like manner as if they had been certified and the certificate had been registered under subsection (1).

• Marginal note:Amounts received deemed public moneys

  (3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act.

Marginal note:References to “Minister”

• 180.8 (1) In the case of a violation referred to in subsection 177(1) or (1.1), every reference to the “Minister” in sections 180.3 to 180.7 shall be read as a reference to the Agency or to a person designated by the Agency.

• Marginal note:Delegation by Minister

  (2) In the case of a violation referred to in subsection 177(2) or (3), the Minister may delegate to the Agency any power, duty or function conferred on him or her under this Part.

Marginal note:Time limit for proceedings

181 Proceedings in respect of a violation may be instituted not later than twelve months after the time when the subject-matter of the proceedings arose.

PART VIIRepeals, Transitional Provisions, Consequential and Conditional Amendments and Coming into Force

Repeals

182 to 184 [Repeals]

Marginal note:Repeal of R.S., c. R-3

• 185 (1) Subject to subsection (2), the Railway Act is repealed, except to the extent that subsection 14(1), except paragraph (b), and sections 15 to 80, 84 to 89, 96 to 98 and 109 of that Act continue to apply to a railway company that has authority to construct and operate a railway under a Special Act and has not been continued under the Canada Business Corporations Act.

• Marginal note:Repeal of certain provisions

  Footnote ^*(2) Sections 264 to 270, 344, 345 and 358 of the Railway Act are repealed on a day to be fixed by order of the Governor in Council.

  • Return to footnote ^*[Note: Repeal in force July 1, 1996, see SI/96-54.]

• Marginal note:Interpretation

  (3) For the purpose of applying the provisions mentioned in subsection (2) after this section comes into force,

  • (a) a reference in those provisions to the “Agency” shall be interpreted as a reference to the Canadian Transportation Agency;

  • (b) a reference in those provisions to a “railway, telegraph, telephone and express company”, a “railway or express company” or a “carrier by water” shall be interpreted as a reference to a railway company, as defined in section 87 of this Act; and

  • (c) the reference to section 64 of the National Transportation Act, 1987 in the definition claim period in subsection 270(1) of the Railway Act shall be interpreted as a reference to section 40 of this Act.

Transitional Provisions

Definition of National Transportation Agency

186 For the purposes of sections 187 to 199, National Transportation Agency means the National Transportation Agency established by the National Transportation Act, 1987.

Marginal note:Powers, duties and functions

187 Wherever under any Act of Parliament, any instrument made under an Act of Parliament or any contract, lease, licence or other document, a power, duty or function is vested in or exercisable by the National Transportation Agency, the power, duty or function is vested in or exercisable by the Canadian Transportation Agency.

Marginal note:Appropriations

188 Any amount appropriated, for the fiscal year in which this section comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the National Transportation Agency and that, on the day on which this section comes into force, is unexpended is deemed, on that day, to be an amount appropriated for defraying the charges and expenses of the Canadian Transportation Agency.

Marginal note:Employment continued

• 189 (1) Nothing in this Act shall be construed to affect the status of an employee who, immediately before the coming into force of this subsection, occupied a position under the authority of the National Transportation Agency, except that each of those persons shall, on the coming into force of this section, occupy their position under the authority of the Canadian Transportation Agency.

• Definition of employee

  (2) For the purposes of this section, employee has the same meaning as in subsection 2(1) of the Public Service Employment Act.

Marginal note:References

190 Every reference to the National Transportation Agency in any deed, contract, agreement or other document executed by the National Transportation Agency shall, unless the context otherwise requires, be read as a reference to the Canadian Transportation Agency.

Marginal note:Rights and obligations

191 All rights and property of the National Transportation Agency and of Her Majesty in right of Canada that are under the administration and control of the National Transportation Agency and all obligations of the National Transportation Agency are transferred to the Canadian Transportation Agency.

Marginal note:Commencement of legal proceedings

192 Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the National Transportation Agency may be brought against the Canadian Transportation Agency in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the National Transportation Agency.

Marginal note:Continuation of legal proceedings

193 Any action, suit or other legal proceeding to which the National Transportation Agency is party pending in any court immediately before the day this section comes into force may be continued by or against the Canadian Transportation Agency in like manner and to the same extent as it could have been continued by or against the National Transportation Agency.

Marginal note:Members cease to hold office

194 Except as provided for in subsection 195(4), all persons who hold office as a member of the National Transportation Agency immediately before the coming into force of this section cease to hold office on that day.

Marginal note:Continuation of proceedings

• 195 (1) Subject to this section, proceedings relating to any matter before the National Transportation Agency on the coming into force of this section, including any matter that is in the course of being heard or investigated by the National Transportation Agency, shall be continued by the Canadian Transportation Agency.

• Marginal note:Application of provisions

  (2) Unless the Governor in Council, by order, directs that proceedings continued under this section are to be dealt with in accordance with the provisions of this Act, the proceedings shall be dealt with and determined in accordance with the provisions of the National Transportation Act, 1987 as that Act read immediately before the coming into force of section 183.

• Marginal note:Directions re proceedings

  (3) The Governor in Council may, by order, direct that proceedings in respect of any class of matter referred to in subsection (1) in respect of which no decision or order had been made on the coming into force of this section shall be

  • (a) discontinued, or

  • (b) continued by the Canadian Transportation Agency,

  on the terms and conditions specified in the order for the protection and preservation of the rights and interests of the parties and of the general public.

• Marginal note:Member continues

  (4) Where in any proceedings continued under this section any evidence was heard by a member of the National Transportation Agency, that person may, on the request of the Chairperson of the Canadian Transportation Agency, continue to hear the matter and that person is deemed to be a member of the Canadian Transportation Agency for the specific purpose of the expeditious completion of the proceedings, after which time that member shall cease to hold office.

• Marginal note:Deemed member

  (5) A person referred to in subsection (4) who is deemed to be a member of the Canadian Transportation Agency under that subsection

  • (a) shall, unless the Governor in Council provides otherwise, be paid in a manner that is consistent with the remuneration the person was receiving immediately before the coming into force of this section; but

  • (b) that person’s status as a member does not preclude the appointment of up to three members under paragraph 7(2)(a) or up to three temporary members under subsection 9(1).

Marginal note:Continuation of previous orders, etc.

196 Subject to sections 197 to 199, every decision, order, licence, permit, rule, regulation and direction made or issued by the National Transportation Agency that was in force immediately before the coming into force of this section and that is not inconsistent with this Act or any other Act of Parliament continues in force as if it were a decision, order, license, permit, rule, regulation or direction made or issued by the Canadian Transportation Agency.

Marginal note:Continuation of railway crossing and junction orders

197 An order of the National Transportation Agency made under section 197 of the Railway Act continues to have effect as if it had been made under section 99 of this Act, but only to the extent that it is consistent with that section.

Marginal note:Continuation of road and utility crossing orders

198 An order of the National Transportation Agency made under subsection 196(6) or section 201, 202, 204, 212, 214 or 326 of the Railway Act continues to have effect as if it had been made under section 101 of this Act, but only to the extent that it is consistent with that section.

Marginal note:Continuation of private crossing orders

199 An order of the National Transportation Agency made under section 216 of the Railway Act continues to have effect as if it had been made under section 103 of this Act, but, if the Canadian Transportation Agency amends the order to authorize any new construction, payment of the costs of the new construction and maintenance of it are governed by subsection 103(3) of this Act.

200 [Repealed, 1996, c. 10, s. 200]

Marginal note:Expropriation under Railway Act

201 Where proceedings under or governed by sections 160 to 188 of the Railway Act were commenced before the coming into force of section 185 of this Act, those sections continue to apply in respect of those proceedings.

Marginal note:Confidentiality of information

• 201.1 (1) Where information concerning the costs of a railway company or other information that is by its nature confidential was obtained from the company by the Agency in the course of an investigation under the Railway Act or the National Transportation Act, 1987, the information shall not be published or disclosed in such a manner as to be available for the use of any other person, except in accordance with subsection (2) or if, in the opinion of the Agency, the publication is necessary in the public interest.

• Marginal note:Disclosure to Minister

  (2) The Agency shall disclose to the Minister any information in its possession, other than information contained in a confidential contract entered into under subsection 120(1) of the National Transportation Act, 1987 or subsection 126(1) of this Act.

Consequential and Related Amendments

202 to 274 [Amendments]

Conditional Amendments

275 to 277 [Amendments]

Coming into Force

Marginal note:Coming into force

Footnote ^*278 This Act or any of its provisions, or any provision enacted or amended by this Act, comes into force on a day or days to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Act, except subsection 142(2), in force July 1, 1996, subsection 142(2) in force July 21, 1996, see SI/96-53.]